University Spin-out Companies

Baroness Wilcox: asked Her Majesty's Government:
	What effect the tax legislation introduced in the Finance Act 2003 will have on the development of "spin-out companies" in Britain's universities.

Lord McIntosh of Haringey: My Lords, I understand that concerns have been raised with the Inland Revenue about the effect of Schedule 22 of the Finance Act 2003 on university spin-out companies. Officials met with UNICO, a professional association of university companies, in July to discuss and clarify the application of the new rules. UNICO has recently submitted a case study to the Inland Revenue. That will form the basis for negotiations, which will allow the correct tax treatment for spin-out companies to be agreed.

Baroness Wilcox: My Lords, I thank the Minister for that Answer. Does he agree that, as it stands, this tax measure is a massive discriminatory disincentive for our bright university innovators?

Lord McIntosh of Haringey: No, my Lords, far from it. Schedule 22 is a very necessary tax reform. It has to deal with a problem which in the past tax year amounted to no less than £1.4 billion of tax forgone. I believe that the analogy the noble Baroness, Lady Wilcox, would want me to make is with venture capital. The British Venture Capital Association has been involved in exactly the same negotiations as those we are now entering into with university spin-out companies. We have two memoranda of understanding, which I believe entirely satisfy the points raised by the Venture Capital Association. I am sure that we can do the same for university spin-out.

Baroness Warwick of Undercliffe: My Lords, I declare an interest as chief executive of Universities UK. Is the Minister aware that the Lambert's Review Summary of Emerging Issues states:
	"The number of spinouts in the UK has been increasing rapidly in the last five years, and is now higher than in both the US and Canada, as a proportion of research expenditure"?
	Does the Minister share my concern that the complexity of legislation in this area may increase the costs of professional tax advice and undermine this excellent record of collaboration?

Lord McIntosh of Haringey: My Lords, I am very glad to agree with the noble Baroness, Lady Warwick, about the excellent reputation of university spin-out companies in this country and the fact that they are so successful. I am afraid that tax complexities exist with or without Schedule 22. The case study submitted by UNICO to the Inland Revenue, to which I referred in my Answer, is three inches thick—I wish it were not so—but it is not caused by Schedule 22.

Lady Saltoun of Abernethy: My Lords, what are spin-out companies?

Lord McIntosh of Haringey: My Lords, when universities or any educational institution—there are examples of schools doing this—have ideas which are capable of exploitation in the market, they set up spin-out companies to exploit such ideas and capabilities.

Lord Skelmersdale: My Lords, at the risk of displaying my ignorance, are not universities, like schools, charities? Therefore, is it not in order for the spin-out companies to covenant their profits tax free to the charity?

Lord McIntosh of Haringey: My Lords, spin-out companies are not charities. It is in order for them to do what they like with their surpluses or profits according to how they are set up.

Baroness Noakes: My Lords, it is encouraging that the Revenue is considering this issue with the university sector. Does the Minister agree that the law of unintended consequences was at work and it was not the Government's intention to tax those involved in university spin-out companies? Will he give an undertaking that the Government will reverse their mistake?

Lord McIntosh of Haringey: My Lords, I am very glad to welcome the noble Baroness, Lady Noakes, to her position and express my sorrow that the noble Lord, Lord Saatchi, is not facing me again. However, I do the best I can with what material is to hand.
	Schedule 22 will work both ways. The purpose behind it is to ensure that the value gained from capital growth is not subject to income tax and national insurance contributions while at the same time ensuring that the value gained by reason of employment, including securities as part of a remuneration package, is subject to income tax and national insurance contributions. That was not clear; Schedule 22 makes it clear, and there is nothing to apologise for.

Household Debt

The Earl of Northesk: asked Her Majesty's Government:
	What is their view of current levels of household debt.

Lord McIntosh of Haringey: My Lords, the Government aim to provide a framework of macro-economic stability and awareness of financial issues within which people can make informed, responsible decisions about how much debt it is prudent to incur. The Government are alert to the risks but debt at present remains affordable. Households' total interest payments currently equate to 7.2 per cent of their disposable income, which compares favourably with the average of 9.4 per cent of disposable income between 1979 and 1997.

The Earl of Northesk: My Lords, I thank the Minister for that reply. Can he confirm that personal bankruptcies are currently running at their highest level since 1993 and that in September alone a record £10.7 billion was borrowed? It may be that stability has replaced prudence in the Chancellor's affections, but against a background of rising interest rates, are not current levels of consumer debt likely to have a destabilising effect on the UK economy in the coming months?

Lord McIntosh of Haringey: My Lords, I am not certain whether personal bankruptcies are at their highest level. I do not doubt what the noble Earl, Lord Northesk, says. But since the previous figure was 9,000—although every single personal bankruptcy is regrettable—it is not an overwhelming figure in macro-economic terms.
	On the issue of the amount of household debt, perhaps I may point out that household wealth is increasing at a very much faster rate than before. It is 50 per cent higher than it was in 1997, with the result that wealth is six times the amount of debt in this country. I consider that to be a very satisfactory result.

Lord Borrie: My Lords, does my noble friend consider that present rates of interest charged by credit card companies are fair and reasonable, or does he think that they are extortionate and therefore illegal under the Consumer Credit Act 1974?

Lord McIntosh of Haringey: My Lords, I think that that question is considerably beyond the subject matter of the original Question. I would be prepared to say that the Consumer Credit Act is in need of review, and we propose to bring forward a White Paper on the subject before the end of this year.

Lord Higgins: My Lords, why are credit rating agencies, which have a significant effect on the level of household debt, still not complying with the provisions of the Data Protection Act more than five years after it was passed? Why are individuals not able to ensure that additional information is held by such credit rating agencies, so that they can assess more accurately the creditworthiness of that individual?

Lord McIntosh of Haringey: My Lords, again, I think that that is beyond the scope of the Question, but the noble Lord, Lord Higgins, draws attention to a serious issue. That issue was responded to by my noble friend Lord Sainsbury after a debate in this House on 21st October. I refer the noble Lord to my noble friend's answer.

Lord Oakeshott of Seagrove Bay: My Lords, is the noble Lord aware of the latest figures in the Bank of England quarterly bulletin about the most important single component of household debt, which is mortgages? In particular, has he seen a fascinating chart which shows that house prices have hit today's ratio of one-and-a-half times average incomes twice in the past 30 years—in 1973 and in 1989? Is the noble Lord aware that each time house prices fell by one-third in real terms? Does the noble Lord believe that mortgage borrowers, over the past year in particular, have taken informed and responsible decisions?

Lord McIntosh of Haringey: My Lords, I believe that in aggregate the situation on housing equity is satisfactory. As a proportion of the total housing assets, mortgage debt is now 25 per cent. In the years referred to by the noble Lord, Lord Oakeshott—1973 and 1989—the mortgage debt was a much higher proportion of housing value. That indeed was dangerous.

The Lord Bishop of Hereford: My Lords, although there is undoubtedly a problem of excessive household debt in some cases, does the Minister agree that one useful way of making lending available to disadvantaged people in a controlled and prudent way, and subject to good advice, is provided by credit unions? Do the Government have a policy of positively supporting credit unions? Can the Minister say whether the number of credit unions is in fact increasing?

Lord McIntosh of Haringey: My Lords, I have had the opportunity to express the Government's support for credit unions from this Dispatch Box within the past few months. I am very glad to do the same again. I realise that it might be thought that my answers to a question which I interpreted in macro-economic terms—in other words, in terms of the economy—might have suggested a lack of sympathy with those individuals and households that find themselves in great difficulties. The Government are extremely sympathetic to every case of that kind. That is why we are reviewing the Consumer Credit Act; that is why we have the Financial Services Authority strategy on financial literacy; and that is why we are paying a great deal of money to Citizens Advice, which is money well spent.

Baroness Noakes: My Lords, does the Minister agree with the recent ITEM Club prediction that borrowing this year will be £36 billion—£10 billion more than the Chancellor's estimate? Does he further agree that the Chancellor is setting a very bad example to over-borrowed households in this country?

Lord McIntosh of Haringey: My Lords, I take it that the noble Baroness, Lady Noakes, is referring to government borrowing. The Question is about household debt. Pace the noble Baroness, Lady Thatcher, I do not think it is an issue of an analogy of government borrowing and household debt. This Question is rightly about household debt. That is what I have been responding to.

Lord Brooke of Sutton Mandeville: My Lords, how does the Minister reconcile the inexorable rise in household debt with the notorious risk averseness to going into debt of students and their families?

Lord McIntosh of Haringey: My Lords, I deny the inexorable rise of household debt. I have said that two things are important: first, the cost of servicing the debt is lower than it was under the government of the noble Lord, Lord Brooke; and, secondly, the ratio of debt to wealth is satisfactory—and much more satisfactory than in past years. As to student debt, the Government have very well thought-out and well publicised policies to deal with that issue.

Lord Mackie of Benshie: My Lords, does the Minister agree that it is far too easy for people to get credit cards. In supermarkets I have seen people flicking through their credit cards and selecting the one on which they still have some credit. Can the Government do nothing about that?

Lord McIntosh of Haringey: My Lords, I think that Mr Matt Barrett of Barclays Bank gave very good advice on that issue.

Lord Tomlinson: My Lords, has my noble friend fathomed precisely what it is that noble Lords opposite are asking for? Are they—the party that wants government off the backs of the people—asking for more intervention from the Government in this case? If so, the obvious areas of intervention would be to increase interest rates, to increase taxation or in some other way adversely to interfere with the economic performance of this country.

Lord McIntosh of Haringey: My Lords, I have no doubt that the noble Baroness, Lady Noakes, will find an opportunity to answer that question.

Lord Roberts of Conwy: My Lords, of the figure of £10.7 billion given by my noble friend Lord Northesk, £8.85 billion was accounted for by mortgage debt. Are the Government satisfied that not more money is being borrowed for productive investment?

Lord McIntosh of Haringey: My Lords, I do not think I understand that question. If the noble Lord, Lord Roberts, is referring to the savings ratio, it is true that it has fallen and now stands at not much more than 5 per cent. But I think he will agree that the savings ratio is an ambivalent measure of potential economic damage. I am sorry that I do not understand his question; I shall have to think about it and possibly write to him.

Uzbekistan: Human Rights

Lord Avebury: asked Her Majesty's Government:
	What reports they have received this year about the state of human rights in Uzbekistan.

Baroness Symons of Vernham Dean: My Lords, we receive regular reporting on human rights in Uzbekistan from our embassy in Tashkent. The embassy closely monitors the human rights situation and is in regular contact with independent human rights organisations and international non-governmental organisations. The Foreign Office's recently published human rights report details our concern about Ubzekistan's human rights record.

Lord Avebury: My Lords, while congratulating the noble Baroness on the human rights report and, in particular, on the excellent speech made by our ambassador in Tashkent about a year ago, does she not think that we now need to reinforce our capacity to monitor the numerous allegations of violations of human rights by the regime that have appeared since that speech? What steps have been taken to reinforce that capacity since the loss of two members of staff at the Tashkent embassy? Will she take this opportunity to reaffirm not only the full confidence of the Foreign Office and of the Foreign Secretary in our ambassador in Tashkent but that of the Prime Minister?

Baroness Symons of Vernham Dean: My Lords, on that last point, we expect Her Majesty's ambassador to Tashkent to return to Tashkent this coming weekend. That fully answers the noble Lord's point.
	He asked what more we can do to promote the development of human rights in Uzbekistan. He is right: there is a sorry position there. We can do so in two principal ways: we can monitor reform and exert pressure. We can set benchmarks against which political and economic reforms will be measured, agreed by the European Bank for Reconstruction and Development strategy for Uzbekistan, which will be reviewed by the EBRD later this year. Secondly, the UN Special Rapporteur's report on torture in Uzbekistan referred to torture as "systematic". It behoves us all to continue to press the Uzbek authorities to implement the recommendations in that report.

Baroness Stern: My Lords, what representations did Her Majesty's Government receive from the US State Department about the ambassador's human rights activities—in particular, his speech, which is so helpfully printed in the Foreign and Commonwealth Office annual report on page 254? If representations were made, how did the Government deal with them?

Baroness Symons of Vernham Dean: My Lords, I know of no formal representations made to Her Majesty's Government on that issue. The fact that the speech is reproduced in full on page 254 of the report clearly conveys that the Government agree with it. As for what else we can do, the issues have of course been raised with the Uzbeks by my honourable friend the Parliamentary Under-Secretary, Mr Bill Rammell, and by his predecessor, Mr Mike O'Brien.

Baroness Rawlings: My Lords, there are more than 6,000 political and religious prisoners in Uzbekistan. Rather than impose sanctions or speak out against the regime—as successive British Governments rightly did in Iraq—the Prime Minister has chosen the opposite approach. Can the Minister confirm that Uzbekistan was granted an open licence to import whatever weapons it wanted from the UK and that when Britain's ambassador to Uzbekistan recently spoke out against abuses, he was withdrawn?
	In February, the Prime Minister rightly said of Saddam Hussein:
	"Ridding the world of Saddam would be an act of humanity. It is leaving him there that is in truth inhumane".
	Does not the Minister agree that when Britain does not apply a consistent approach we undermine our ability to deal with dictators?

Baroness Symons of Vernham Dean: My Lords, I fear that I must take issue with the premise of the noble Baroness's question. We have spoken out on the issue. As I made clear in previous answers, not only has the current Minister responsible spoken out on the issue, so did his predecessor. If the noble Baroness cares to read our human rights report, she will find no fewer than 13 individual cases specified there. I am sorry to take issue with the noble Baroness, but the fundamental premise of her question is wrong. As for exports, the fact is that Uzbekistan has not been a traditional market for UK defence exporters—primarily because of its human rights record.

Lord Judd: My Lords, is my noble friend aware that many of us congratulate the Government on standing firm on human rights issues in Uzbekistan? Does she accept that it is not simply a matter of individual rights, but that, if there is to be any hope of stability in that incredibly volatile and dangerous region, it would be absurd to become directly or indirectly implicated with policies of regimes that are abusing human rights, causing dissent and building political pressure?

Baroness Symons of Vernham Dean: My Lords, I broadly agree with what my noble friend said. He is right: this is not just about what is happening to individuals. For example, there are no independent political parties in Uzbekistan; the press is muzzled; religious activity is controlled by the state; and the judiciary is compromised. The noble Baroness, Lady Rawlings, said that there were 6,000 political prisoners; I am informed that there are between 7,000 and 10,000. Torture is practised in prisons. There have been some appalling deaths in custody—the most notorious of which resulted from individuals being subjected to boiling water.
	Those are all terrible indictments of human rights in Uzbekistan, but we must engage with that country. Hence, we have an ambassador there who can do what he is doing—speaking out on those issues. We must proceed with the Government's policy of critical engagement; it is through such dialogue that we hope to bring Uzbekistan to a better understanding of its obligations.

Lord Swinfen: My Lords, how do human rights in Uzbekistan today compare with human rights when it was part of the Soviet Union?

Baroness Symons of Vernham Dean: My Lords, I do not know whether we can answer that question. Although I have been able to refer your Lordships several times to the report in which we detail individual cases, we can do that because Uzbekistan is now at least more accessible to the UN Rapporteur on Human Rights and to embassies—not only our own but those of the EU—which can help to monitor human rights. It would be difficult to give the noble Lord a realistic answer, because such information is unlikely to have been available under the previous, entirely closed regime.

Non-accredited Universities

Lord Watson of Richmond: asked Her Majesty's Government:
	What measures they are considering to prevent non-accredited universities being set up in the United Kingdom and charging substantial fees for degrees which have little value.

Baroness Ashton of Upholland: My Lords, existing legislation requires institutions in the UK offering British degree qualifications to be recognised. Companies registered with a place of business in Britain also need the permission of the Privy Council to use "university" in their title. Trading standards officers can take enforcement action against breaches. My department's website gives information on which institutions are recognised.

Lord Watson of Richmond: My Lords, I am grateful to the Minister for that reply, although I think that there are some very worrying questions still outstanding. Does the Minister agree, first, that the heart of this matter is that British universities require Privy Council approval and are also subject to inspection by the Quality Assurance Agency for Higher Education? So-called foreign universities are in fact subject to inspection only by local authority weights and measures officers. This is a ludicrous and scandalous situation which is damaging to the academic reputation of this country. Secondly, does the Minister agree that having a PO box number does not qualify someone to set up a university in this country and sell degrees at £4,000 per year?

Baroness Ashton of Upholland: My Lords, as the noble Lord will be aware, the Education Reform Act 1988 and the Business Names Act 1985 are the two key pieces of legislation that enable us to monitor the situation. However, the noble Lord is correct to point out that there are organisations that claim to be universities offering overseas degrees which we are unable to do much about. However, trading standards officers do enforce the law and prosecute bogus universities. None the less, these organisations operate through the Internet, which reveals to noble Lords that it is incredibly difficult to see how we would ultimately be able to monitor every single institution or organisation which claims to offer an overseas degree from an overseas website.

Lord Quirk: My Lords, I declare an interest as vice-chairman of academic governors to one of the small but respectable American universities that trade in London—to wit, Richmond. Those universities are seriously disadvantaged by the existence of these illicit universities with which they have to compete in the market and with whom they are guiltlessly associated.
	Is the Minister aware that, last July, her ministerial colleague, Mr Alan Johnson, wrote to Sir Cyril Taylor, the chairman of Richmond, acknowledging that:
	"The American University of London is not a recognised university and it does not have Privy Council approval to use the word 'university' in its name"?
	Does the Minister accept that this situation has existed for well over a decade? When can we expect some action?

Baroness Ashton of Upholland: My Lords, on 29th October my honourable friend met Sir Cyril Taylor specifically to discuss the issues just raised by the noble Lord, Lord Quirk. As a result of that meeting, we have seen some action from trading standards departments and Companies House. I should also say to the noble Lord that my honourable friend agrees that we need to consider other ways to toughen the enforcement measures, as well as better ways of alerting students to the need to check whether institutions are accredited.

Lord Campbell-Savours: My Lords, is it not true that some of these degrees, in the words of the Question on the Order Paper, "which have little value" are in fact available in some of our accredited institutions here in the United Kingdom? What guarantees can the Government give that, if we do aim for the 50 per cent target which some of us have questioned for a long time, it will not mean simply more of the kind of degrees which have a question mark over them?

Baroness Ashton of Upholland: My Lords, I think that my noble friend is completely wrong to link the activities that have been described by the noble Lords, Lord Watson and Lord Quirk, with the reputable nature of the accredited institutions in this country. To be frank, I find that very surprising.
	It is our view that, in a society such as ours, we should encourage those who are able and capable to go to university to get a degree. That is a laudable aim.

Lord Sutherland of Houndwood: My Lords, can the Minister say how many such institutions there are in the UK? I am prompted to ask this question as a result of my experience a few years ago advising the Indonesian Government. They discovered that they had 1,200 institutions claiming to be universities, the vast majority of which were unaccredited. They felt that they could tackle the problem and they sought advice on the matter. I should say that I am not touting for business—the work was done pro bono through the British Council—but, on the other hand, what advice can the Minister call on to deal with the very real problem to which my noble friend Lord Quirk has drawn attention?

Baroness Ashton of Upholland: My Lords, the fundamental point behind the question asked by the noble Lord, Lord Sutherland, is what is meant by, "in the United Kingdom". Where organisations or companies with a business address in the UK use the word "university" in their title, they must be approved by the Privy Council. But the words "in the United Kingdom" can mean a number of different things: access via the Internet, an accommodation address or a PO box number. Those are the issues which have proved to be most difficult. They are difficult because if we were simply to try to accredit all of those institutions and organisations, we would need to have some kind of accreditation for every possible qualification the world over. We would need to consider that very carefully; hence, we are looking at different ways of enforcing the law where we are best placed to do so.

Baroness Blatch: My Lords, the noble Baroness has admitted in some of her responses that more could be done. Can we have an assurance that the higher education Bill, which we believe is due to start imminently either in this House or in another place, will contain clauses to address this problem?

Baroness Ashton of Upholland: My Lords, the noble Baroness will know that I am not in a position to comment on what is set out in the higher education Bill.

Drought Plans

Baroness Miller of Chilthorne Domer: asked Her Majesty's Government:
	When a lack of rainfall becomes a drought enabling Ministers to direct water companies to implement drought plans.

Baroness Farrington of Ribbleton: My Lords, each water company has a drought plan which sets out the actions necessary to maintain public water supplies during a drought. The plans contain a series of triggers which, as they are reached, cause the company to initiate a series of actions, the nature of which is dependent on the severity of the drought. Drought plans are not statutory so the Government cannot direct companies to follow them.

Baroness Miller of Chilthorne Domer: My Lords, while I thank the Minister for that reply, I feel that it does not quite answer my Question: when does a lack of rainfall constitute a drought? Noble Lords will be aware, and I am sure that the Minister will agree, that at present river levels are very low. When replying yesterday in another place to the debate on the Water Bill, Mr Elliot Morley said that pumping out rivers to replenish low reservoirs was the best that could be done. Does not the Minister think that the Government need to do something about saving water? If it does not rain much before the spring, we shall be in a very difficult position.

Baroness Farrington of Ribbleton: My Lords, I apologise if I did not answer the Question put by the noble Baroness, Lady Miller of Chilthorne Domer, to her satisfaction. The test for drought conditions is as follows: rainfall is judged against the long-term average; a high percentage of deficiency and the probability of future rainfall occurrence will determine whether it is an exceptional event. However, I am happy to tell the noble Baroness that, within the drought plans and under the powers of the water companies, many steps can be taken short of issuing permits and orders. Therefore action has been taken in a variety of ways, in particular in those areas hit hardest by the current low rainfall.

Lord Dixon-Smith: My Lords, is the noble Baroness aware that I was very pleased with her first reply? I am immensely glad that she does not have to bear the responsibility of declaring a drought. If the noble Baroness, Lady Miller of Chilthorne Domer, had to live with the levels of rainfall that we are accustomed to in Essex, then her county would be in a state of permanent drought. That is one of the impossible realities of this situation.
	It is a fact that the water companies have to do the work—that is the appropriate solution. Further, that this Question has been tabled surely reveals the need for much greater investment in our water industry. Can the noble Baroness indicate what plans are being made to increase levels of investment to ensure that water supplies across the country, whatever may be the particular circumstances of an individual utility, are secure?

Baroness Farrington of Ribbleton: My Lords, the Government keep constantly under review the need for appropriate investment to be made. Both the Water Bill and the work being done with the Environment Agency are targeted on looking at water resource availability in the future.
	As regards the first point made by the noble Lord, Lord Dixon-Smith, I cannot but agree with him. Circumstances do vary from area to area and it would be a patent nonsense for the Government to establish a level for drought that would then apply across the whole of the country. Different areas of the country are affected in different ways. As the noble Lord himself pointed out, certain parts of the country have had to learn to cope in advance of others.

Lord Renton: My Lords, in further considering this matter, will the Government be careful to bear in mind that we do not have a single problem for the whole of the United Kingdom. The east of England is much more short of water, generally speaking, than the west.

Baroness Farrington of Ribbleton: My Lords, the noble Lord, Lord Renton, is right—there are variations between different parts of the country. London, the South East, the Lake District and Severn Trent are currently looking very carefully at this issue. I am pleased to reassure the noble Lord that companies in other regions will learn from the experience of the south-east.

Lord Livsey of Talgarth: My Lords, the Minister said that drought plans are not statutory. Are compensatory river flows statutory and does the Environment Agency have enforcement powers with a statute behind them? Many of the rivers in the west are running extremely low—lower than I have ever seen before—but I am happy to say that, although that is causing great ecological damage, the citizens of Birmingham are still getting their water.

Baroness Farrington of Ribbleton: My Lords, the noble Lord is right—the Environment Agency has a statutory duty to have regard to the environmental impact of plans that are put forward, particularly in a time of drought. As to its impact across Offa's Dyke, as I know the noble Lord knows, Severn Trent Water relies on a transfer from the Elan Valley reservoirs in mid-Wales for supplies to Birmingham. The company is in discussion with Welsh Water and the agency with regard to the need for a drought permit or order to conserve stocks and increase the likelihood of being able to refill reservoirs.

Baroness Byford: My Lords, does the Minister accept that the Defra committee warned that unless rainfall this winter is 30 per cent above the normal level there will be serious water shortages in the spring? Does she further accept that the unacceptable delays between a water company applying for and receiving permission to invoke a drought order cannot continue under these circumstances? Why is there a delay between a drought order being sought and permission being granted?

Baroness Farrington of Ribbleton: My Lords, I should be extremely grateful if the noble Baroness, Lady Byford, would let me have details of any such occurrence. I have not been made aware of any plan or any application for a drought order. If the noble Baroness is referring to permits, discussions are ongoing at all times when a water company feels the need to hold them. I am not aware of any circumstance where there has been a difficulty.
	I appreciate the first point made by the noble Baroness. Quite obviously we have had the worst rainfall figures between February and October for 74 years, with the exception of 1959. We all hope that there will be at least an average seasonal rainfall to replenish stocks.

Baroness Sharples: My Lords, what proportion of the population is now metered for water?

Baroness Farrington of Ribbleton: My Lords, I do not have the exact number of those who are metered for water. The Government recognise that metering has a role to play and their policy, put into law by the Water Industry Act, allows household customers to choose between the two systems. I do not have the exact percentage. If the figure is available, I shall contact the noble Baroness.

Baroness Thomas of Walliswood: My Lords, there is a good deal of anxiety about the long-term availability of water in this country and the need for more reservoirs, particularly in the south-east. What interaction is there between that kind of information and the plans for greatly increased housing in both London and the south-east of England?

Baroness Farrington of Ribbleton: My Lords, it is important that those considering plans for housing should have regard to the issues raised by the noble Baroness. It is important that we are aware that the south-east, as noble Lords around the House recognise, is particularly water stressed. Efficiency measures in terms of water use will be critical from the outset of the new development. We have set a water efficiency saving target of 30 per cent to help develop a sustainable water supply. I know from helping to take the Water Bill through your Lordships' House that many noble Lords are aware of the advice that has been given in regard to teeth and bathing.

Lord Williams of Elvel: My Lords, does my noble friend agree that we have discussed this issue many times before over the years, as I am sure the noble Lord, Lord Livsey, will recognise? We were told in the 1990s that the Welsh water table had fallen by 18 inches. Within a year or two, of course, it came back. Does my noble friend further agree that we should not cause panic; that we should deal with the situation as it comes and not get too worried about the rainfall that may or may not occur in Wales or throughout the United Kingdom in December or January?

Baroness Farrington of Ribbleton: My Lords, to a degree, my noble friend is right. It has been my experience of visiting, on many occasions, the beautiful country of Wales and the Lake District, where there is currently a problem, that it rains from time to time and the water invariably comes back. The Government do not have a direct role with regard to water company actions but the situation is kept under review by the Environment Agency. I know that my noble friend will pay particular regard to, and take pleasure from, the fact that the Environment Agency takes one of his major concerns in life—fishing—seriously as part of the equation.

Mersey Tunnels Bill

Lord Brabazon of Tara: My Lords, I beg to move the Motion standing in my name on the Order Paper.
	Moved, That the promoters of the Bill have leave to suspend any further proceedings thereon in order to proceed with it, if they think fit, in the next Session of Parliament, provided that notice of their intention to do so is lodged in the Office of the Clerk of the Parliaments not later than 12 noon on Thursday 13th November and that all fees due on or before that day have been paid;
	That if the Bill is brought from the House of Commons in the next Session the agents for the Bill deposit in the Private Bill Office a declaration signed by them stating that the Bill is the same in every respect as the Bill which was brought from the Commons in the present Session;
	That the proceedings on the Bill in the next Session of Parliament be pro forma in regard to every stage through which the Bill has passed in the present Session, and that no new fees be charged to those stages;
	That the Private Business Standing Orders apply to the Bill in the next Session only in regard to any stage through which the Bill has not passed during the present Session;
	That if any petitions have been presented against the Bill— (i) any such petition (if not withdrawn) stand referred to any Select Committee on the Bill in the next Session; (ii) no petitioners be heard before any Select Committee on the Bill in the next Session unless their petition has been presented within the time stipulated for the deposit of petitions in the present session or deposited pursuant to Private Business Standing Order 109(b); (iii) Private Business Standing Order 110 have effect as if the words "under Standing Order 109" were omitted.—(The Chairman of Commitees.)
	On Question, Motion agreed to; and a message was ordered to be sent to the Commons to acquaint them therewith.

Taxation (Information) Bill [HL]

Lord Saatchi: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
	Moved, That the order of commitment be discharged.—(Lord Saatchi.)

On Question, Motion agreed to.

Identity Cards

Baroness Scotland of Asthal: My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Home Secretary. The Statement is as follows:
	"With permission, Mr Speaker, I wish to make a Statement on identity cards and the publication of an explanatory paper which is in the Vote Office.
	"The Government have decided to begin the process of building a base for a national compulsory identity card scheme. We intend to proceed incrementally, beginning by establishing a database and introducing new technology in passports and driving licences.
	"As I spelt out in the policy paper published in July last year, a scheme of this scale and complexity would always have to be phased. I said then, and I quote,
	'it will, by its very nature, take some time should the Government decide to legislate to get the card into place'.
	"The House will know that since I made my statement, I have been consulting widely, including on issues of secure and verifiable identification. We are on entirely new territory here. There appear to be many people who think we are talking about an old style card with a photograph. We are not.
	"We undertook the consultation because of the enormity and pace of change. Such changes make it increasingly difficult to protect and authenticate the identity of those seeking work, or drawing down on free public services. But at the same time the development of specific personal identifiers, which are known as biometrics, offer us an opportunity to do just that. This would mean that identity could not be forged or duplicated. Techniques such as fingerprinting, face recognition and the use of the iris, allow us to develop a database capable of foiling duplicate or stolen identity. These developments will enable us to deal with the growing threats to the security and prosperity of Britain from identity theft, fraud, and illegal migration.
	"Two things have changed from the discussion of identity cards on previous occasions: the changed world in which we are operating and the introduction of new biometric identifiers. There is near universal support internationally for the idea of developing biometric identifiers. For example, the United States is about to introduce a scheme where you must have a biometric passport in order to benefit from existing visa waivers. Those without such developments will increasingly find themselves exposed to and targeted by international criminals.
	"In such circumstances public demand for action would become overwhelming. But Britain without such developments would have missed an opportunity to protect ourselves and promote the best interests of individuals and families. In addition, the security services have indicated to me that they would value improved methods of verifying identity and counteracting the use of multiple identities. Again, it is obvious that terrorist networks would target those countries that had made least progress in developing the capacity to provide this protection.
	"All of us know that identity fraud costs us dear. As individuals, as corporate entities and as a nation we are open to tremendous exploitation. It is therefore common sense to prepare now for the future. As I have indicated, it would not be possible to issue cards to the whole population through a big bang approach, even if this were desirable. We therefore intend to proceed in two phases.
	"In phase one we would begin to issue biometric identifiers through the renewal of passport and driving licences. As I said in the consultation paper last July,
	'as well as being convenient for the general population, building on the driving licence and passport systems would help to spread demand for the new documents and avoid delays in issuing them promptly'.
	As soon as the database is available we would commence issuing identity cards to EU and foreign nationals seeking to remain in the country. We would also make available an optional card for those who do not have or wish to have a passport or driving licence.
	"We will move ahead now with all the necessary preparations, but the final decision on a move to the second stage of the scheme, which involves compulsion, will rest with Parliament. Clearly, the Government will take that step only after a rigorous evaluation of the first stage, when we are confident that there is widespread take-up and acceptance of the scheme and that the benefits outweigh the costs and the risks.
	"We would also need to be sure that the concessions were working satisfactorily for those on low incomes and other vulnerable groups. Finally, we would need to be satisfied that all the technical, financial and administrative preparations are in place for it to deliver the benefits we have described. Draft legislation will allow further consultation on all those issues.
	"Parliament would determine under strict criteria what identifiers were necessary on the chip contained in the card, and therefore what should be held on the database. It would not be necessary, for instance, to hold the address of the individual on the face of the card, as with current driving licences, therefore reducing rather than increasing risk.
	"Let me now turn to a number of issues that I know have been of public concern. In relation to cost, were we to add biometrics to existing identity documents, which I think most people believe is inevitable, we would incur all the expense and the technological development necessary, but without securing the gains. These include clamping down on illegal residents, illegal working and the exploitation of free public services.
	"The ID card scheme will make it possible to make all these benefits available to those who might not need or want a driving licence or passport and who could not otherwise afford such an identity document. We will provide a free card for 16 year-olds, a concessionary charge for those on low incomes, including those in retirement, and the option of a lifelong card for those renewing at the age of 75.
	"We are also looking urgently at how benefits in the business and commercial world can further reduce the overall cost, again in a way which would not be possible simply by updating passports and driving licences.
	"In order to avoid accusations of under-estimating the cost, we have chosen to build in a substantial contingency. We estimate that the basic cost would be, over a 10-year period, £35. All but a very small amount of this would be necessary in introducing biometrics in any case. This addition would be in the region of around £4 over the 10-year period. We would ensure that the basic cost of a card could be paid for by individuals in a variety of ways. Some people could choose to pay incrementally, through such mechanisms as saving stamps and credits.
	"I should emphasise that it will not be compulsory for anyone to have to carry the card with them, any more than it is with the driving licence today. Although its use would be very helpful to public services, until the scheme became compulsory, it would not be necessary to present a card to access those services. Clearly, however, as the most reliable form of identity, it will gradually become commonplace and convenient to use the card. But of course no one will be denied access to emergency services because they do not have a card.
	"In order to protect the private details of individuals, Parliament will prescribe the information to be held on the chip and on the database. Information would be limited to that required to verify identity. Privacy and confidentiality would be an essential part of the system. The protection of civil liberties would be assured in a way which is not the case for a whole range of commercial identifiers and card systems in widespread use at the moment.
	"Let me make it clear: no one has anything to fear from being correctly identified, but everything to fear from their identity being stolen or misused.
	"Focus groups and polling evidence demonstrate around 80 per cent support for identity cards. With the cost of secure identification being necessary, with or without an ID card, I believe that the proposals I am setting out will win widespread support.
	"This is about asserting our sense of identity and belonging, about our citizenship and about reinforcing the balance between rights and responsibilities. That is why I commend this Statement to the House and ask for a sensible and thoughtful debate. This is all about addressing the future and having the courage to modernise, to take on the challenges of the 21st century".
	My Lords, that concludes the Statement.

Viscount Bridgeman: My Lords, I thank the Minister for letting me have an advance copy of her Statement.
	We from these Benches are deeply concerned that these proposals for the introduction of ID cards fall between two stools: they comprise a considerable threat to civil liberties and personal privacy, but meanwhile bring about none of the benefits that the noble Baroness foresees. I believe that I am not alone in being extremely sceptical about the effectiveness of such a scheme in combating illegal immigration, illegal working and identity fraud and in enhancing security in general.
	Why will the scheme not work? First, it certainly will not provide an obstacle to would-be suicide bombers or terrorists plotting an attack in Britain. It is clear that foreign nationals will be able to remain in this country for three months without an identity card. That will provide more than enough time to implement any plot, especially given the nature of international terrorist cells with the means and resources to fly regularly in and out of the United Kingdom. I would be interested to hear from the Minister whether she fosters any hope that identity cards will make life more difficult for terrorists, and, if so, to hear precisely how.
	I turn to how introducing ID cards would help to tackle illegal immigration. As I understand it, to begin with at least, there would be no compulsion to carry ID cards. The Minister made that clear. That being the case, surely an illegal immigrant would be able to remain constantly one step ahead of the police, always promising to go to the police station to produce the card when requested, but then vanishing into thin air. Moreover, there is the loophole made explicit by the Home Secretary in another place that a large number of people would be able to access employment and services without ever producing their card. Illegal immigrants will be able to use the fact that EU nationals can stay in Britain for three months and work without any papers.
	I really cannot see how identity cards would create any difficulties at all for those whom the cards are supposed to trip up, while providing a considerable invasion of privacy for the law-abiding citizens of this country. With this, as with all new fraud-busting techniques, the criminal would rapidly develop the technology and expertise to get one over those who are trying to catch him. While this does not mean that we should not try, it does mean that we should be extremely wary of introducing a scheme that places significant powers in the hands of government at the expense of the individual.
	The Statement provides worryingly few clues about who would be able to access information held on the database. As the shadow Home Affairs Minister in another place, my right honourable friend Mr David Davis explained, when the Regulation of Investigatory Powers Act was introduced, there were reassurances that private communications would be accessible only to the police. This has now been expanded to include a large number of organisations, including local authorities and the Post Office. What reassurances can the Minister provide to the House that the same will not happen here?
	I understand that Parliament will have the opportunity to debate the principle of the ID card but I should welcome an assurance from the Minister that any move towards a compulsory card will be the subject of primary legislation rather than an order.
	There is much at risk with the introduction of ID cards. A huge financial investment is on the line quite apart from risks associated with the threats to civil liberty, and I am afraid that those risks are not even close to being matched by benefits that an ID card could bring under the present proposals. The possibility of combating illegal immigration and identity fraud is hugely important, but I cannot see that happening as a result of the proposals set before us today. The whole subject of ID with the latest electronic techniques is a matter of great urgency but we feel that the proposed implementation as announced today is an opportunity missed.

Lord Dholakia: My Lords, I thank the Minister for providing me with an advance copy of the Statement.
	The ID card and the Government's plan for its introduction smack of an incremental approach which is unsatisfactory. I am always suspicious when the Government announce reforms in two stages. What we need is a legislative framework that clearly sets out the uses of the new passports, driving licences and plain ID cards. What is even more important beyond the protection of civil liberties is how this approach would protect privacy. We trust that the draft legislation when introduced will address all those points. The incremental approach means that it will take up to eight years to complete the task of registering the entire population at a cost, I understand, of some £10 billion and an annual running cost of some £500 million.
	I do not wish to be unkind to the Home Office but the Government have a poor record in implementing computer systems on time. Only today we hear that a powerful committee of MPs condemns the huge project to put all the nation's magistrates' courts on one computer system. The cost of the scheme has risen from £146 million to almost £400 million while it still does not deliver.
	The contents of the Statement will come as no surprise to anyone—as it seems that the Home Secretary is determined to push ahead with ID cards despite considerable opposition from his own party and, I suspect, the Cabinet. While his measures to upgrade passports and driving licences with new technology may sound initially attractive, does he not recognise that many people will see these as the first step to identity cards? Will the Minister confirm that any legislation on ID cards and new technology will be subject to pre-legislative scrutiny? Will the Minister also confirm that the cost of updated passports and driving licences will be no more than the additional charges people incur, and that the device is not used to inflate passport charges?
	On ID cards themselves, does the Minister acknowledge the dangers of falsifying cards and the false security this can create when it comes to terrorism? On benefit fraud will the Minister confirm that the majority of cases are about over-claiming and not falsification of identity? Will the Minister acknowledge that tackling illegal working with ID cards is futile given that illegal work by its nature is part of the black economy? Will the Minister also confirm the estimated cost of the ID cards at £40 per card, and confirm that the poorest members of society will be expected to pay less for that?
	There is evidence that ID cards do not cut crime. From what I have read there is not a shred of proof to suggest that they serve that purpose. Indeed, police officers complain that they rarely have trouble identifying criminals—it is catching them that is the real problem.
	In addition, does the Minister accept that many people are opposed to compulsory ID cards, but that unless the cards are compulsory and unless the police have the power to arrest—something we should all be worried about—there is little hope of cutting crime as criminals will just not bother to carry their card?
	Will the Minister clearly state the purpose of ID cards? Are they for identification purposes only, entitlement to public services or both? Will the Minister acknowledge that if the card is to store biometric data that is a hugely costly and complex undertaking which not a single private institution has seen fit to attempt? If the Government cannot properly roll out their electronic fingerprinting devices in police stations, why should we trust them to make a better go of this?
	Finally, does the Minister recognise that the billions of pounds involved in the project outlined today would be better spent providing more police, making our streets safer and tackling crime in this country?

Baroness Scotland of Asthal: My Lords, I say immediately to the noble Lord, Lord Dholakia, that we do not agree that this is a matter of concern. I hear what the noble Lord says about the incremental approach in two phases. I reiterate what was said in the Statement; namely, that we have to grapple with some clear realities. First, this is a huge technological endeavour with which we have to grapple. We cannot avoid the reality that biometric data are here to stay because our international partners are developing them and increasingly they will demand, if our systems are to have free and easy passage through their countries—not just the EU but the wider world—that we should have the sort of data which will enable them to do that. That is the reality.
	I hear, too, what the noble Lord says about this country's historical inability to undertake large IT programmes. However, I say to the noble Lord that that was under a different administration.

Noble Lords: Oh!

Baroness Scotland of Asthal: My Lords, it was but I shall develop why I say that. We inherited a position of some difficulty which has taken a little while to sort out.
	Noble Lords will remember that the UK Passport Service, for example, was a particularly challenging service, about which there were a number of justifiable complaints. We now have a UK Passport Service that achieved a 98 per cent satisfaction rating from its customers in 2001–02—something that would have been undreamt-of before. Also, UK work permits are now issued within 24 hours. So we are getting better and learning all the time. It is for that reason, in part, that we perfectly understand that we shall have to tread carefully. Technology is developing very rapidly; we are reaping the benefits of that technology, and will continue to do so.
	The noble Lord also said that there was difficulty and opposition. However, we should recognise that, on all the surveys of the wider public, there is 80 per cent support for what we are trying to do. There are clear benefits. I take issue with the noble Lord when he says that the benefits are not clear, because we believe that there are major benefits in identifying fraud and limiting the opportunity for others to steal identity. Noble Lords will know that that has been a real difficulty. Although the issues are very difficult, we believe that the benefits are very clear indeed. I hear the noble Lord's scepticism, but we do not believe that that scepticism is justified when one considers the facts.
	We must give a clear message, and identity cards will enable us to do that. We shall have to combat terrorism and take arms against those who wish to take adventitious advantage of the current system, making it much more difficult for them to do so. We believe that identity cards will help us to do that. Terrorists will try to use false identities in the same way as organised criminals, to help to finance their activities in the United Kingdom and abroad. Organised criminals use false identities to launder money, to abuse the immigration system through people trafficking, and to facilitate drug smuggling. Disrupting their activities is a key priority, which also has a direct effect on the crimes that cause the most misery in our community, such as drugs, trafficking women for prostitution and/or people working illegally in unsafe and crowded conditions.
	Identity cards will also be a major help in tackling clandestine residence and illegal working, making it easier for employers to check a worker is here legally. Residence permits, issued to foreign nationals, will state whether they are free to work in the United Kingdom. It is planned to arrange for a call centre to answer any queries from employers and for that to be backed up with enforcement action targeted at those employment sectors most at risk from illegal employment. Those are very profound advantages. Therefore, I cannot accept the assertions made by the noble Lord in that regard.
	There has been a debate on the principle. Noble Lords should be in no doubt that the expression now contained in the Statement is the view of Her Majesty's Government, and the Cabinet has endorsed that view. We have made a decision that, in principle, it is something that will inure to our long-term benefit. However, we are being utterly sensible. We understand that there are hurdles that need to be overcome—first, the practical hurdles. We must demonstrate the utility of what we wish to achieve and that the same is achievable. We believe that that will take a little time.
	It is true that the costs will be greater than those currently envisaged for passports or driving licences, but there is a reason for that. The technology—biometrics—that we shall introduce will be more expensive, and has to be paid for. A full driving licence will cost £38 to obtain from next March, and the minimum passport fee is now £42. Under the proposed scheme, we estimate that the enhanced fee for a driving licence will be £73, and for a passport £77. However, holders of both documents will pay the enhanced fee only once, and for the first document they renew. We have made it plain that we shall seek to cushion the burden of the costs for those who are less able to pay.
	The Government should be congratulated on finding a sensible and balanced way forward, which will enable Parliament to have its say once those practical hurdles have been overcome, so that if and when the debate is heard, all Members of your Lordships' House and the other place will have their say.

The Earl of Onslow: My Lords—

Baroness Sharples: My Lords—

Lord Barnett: My Lords—

Lord Davies of Oldham: My Lords, I believe that it is this side.

Lord Barnett: My Lords, I agree in principle with my noble friend the Minister about the need at least to examine how we should move towards a form of identity. I confess that I must have missed the long-standing concern about civil liberties on the part of the Opposition. However, I am concerned about the overall cost.
	My noble friend and the Liberal Democrats referred to some figures. There is concern about the widespread nonsense being put about relating to total costs. As my noble friend rightly said, we are moving into an advanced technological era. In those circumstances, will she ensure that figures are published giving an analysis of potential total costs so that we can see where there might have been waste? The Public Accounts Committee might at some point in time examine those figures.

Baroness Scotland of Asthal: My Lords, I have tried in my response to give an indication of what we currently believe to be a relatively robust estimate. We have tried to err on the side of caution. One of the realities with which we have all had to deal is that, as technology advances, the costs have come down. We can see that things have changed dramatically if we compare the costs of a computer five years ago and the costs of a computer now, and the size of the computer and the extent to which we are now able to use it. We all know that almost as soon as something comes off the assembly line it is already obsolete, because something faster and better is coming through. Therefore, the figures that I have given are the figures at today's date; I would reasonably anticipate that they may change, but I personally would very much doubt that they will go up. However, we shall obviously have to look to see what the reality is.

Baroness Sharples: My Lords, I should like to congratulate the Minister on her Statement, with which I agree a great deal. Candidly, I am completely at odds with my Front Bench. The noble Baroness, Lady Scotland, may be aware that I began to raise the issue some nine or 10 years ago and got nowhere, but I am delighted that we are now getting somewhere.
	We must obviously weigh the cost of fraud against the cost of the cards. I am very glad that the cards will not be made compulsory, as that point was made to me over many years by the police, who felt that that would be confrontational. That may alleviate the problems referred to by the noble Lord, Lord Dholakia. Will the Minister confirm the timetable for the production of the cards?

Baroness Scotland of Asthal: My Lords, it is very difficult to be certain. We hope that we shall be in a position to move to the biometric cards for ID, passports and driving licences by 2007–08. Noble Lords will know that that is the first stepping stone to getting all the technology right. Obviously, we do not know how long it will then take to move that forward. Realistically, we are looking at the end of the decade, but I cannot give noble Lords a fixed period, as the most important thing is to get the measures right.

Viscount Bledisloe: My Lords, am I right in understanding that, even when the cards become universally compulsory, there will still be a charge for them? What possible justification is there for that? If I want to travel with a passport or to drive with a licence, all right, I must pay. But what justification or precedent is there for saying that you must pay a compulsory fee if you wish to exist? Or is the Minister's simple answer that if I do not wish to pay I am perfectly at liberty to commit suicide?

Baroness Scotland of Asthal: No, my Lords—the noble Viscount will, of course, be greatly missed. The most important thing is to move to a stage when the biometric facility is generally available. Noble Lords will know that more than 40 million people currently have a passport and, I believe, more than 30 million already have a driving licence. The bulk of our nation already has some form of identification available to them. We will build on that, because biometric technology will have to be made available if we are to be consistent with our international partners. That is the reality of our position.
	There is a question about how we move forward. We anticipate that, as the facilities become available, more and more people will choose to use them because they are beneficial. Obviously, we will need to cushion those who do not have the facility of large sums of money or who are financially stretched. We will also have to look at provisions relating to groups with other forms of vulnerability and try to manage those costs.
	Before we move to a compulsory system, there will be a proper opportunity for us to have what undoubtedly, if we continue to hold our current views, will be a very robust debate on whether we should move from a voluntary scheme to a compulsory one. Parliament will have an opportunity to have its say and so will the people. We believe that, by then, people will have a proper understanding of what they are agreeing to or disagreeing to.

Earl Russell: My Lords, will the Minister respond to the point made by my noble friend Lord Dholakia about the cost of the cards to the poorest members of society? The cost comes very close to a week's income support. The Minister will be aware that such people are under an obligation actively to seek work, and that that obligation may take the form of exercising their rights of freedom of movement within the European Union. If that right should cost some members of the European Union more than it costs others, might that be found to be an infringement of Article 7 of the Treaty of Rome? If so, do council tax benefits and community charge benefits provide a route along which the Government might look for a solution to the problem?

Baroness Scotland of Asthal: My Lords, I have tried to answer that question as fully as possible. As I said in repeating the Statement, we would also need to ensure that the concessions worked satisfactorily for those on a low income and other vulnerable groups. The noble Earl is right in saying that we would have to address that issue. Those without access to a form of independent verification of identity already feel disadvantaged and have greater difficulty in getting credit, and in other matters. For example, one of the constituents of my right honourable friend the Home Secretary had to get a passport for use in opening a bank account. We already have those difficulties. We understand them and will continue to look at such issues to try to ensure that, if identity cards are introduced, they are available to all on a reasonable basis, taking into account the inability of certain vulnerable groups who already have limited access to such forms of identity.

Lord Mackenzie of Framwellgate: My Lords, I welcome the measured Statement by my noble friend. Identity is important, certainly from a law enforcement perspective. The Statement has been welcomed by the police and other law enforcement agencies. Identity is critical when dealing with people. For obvious reasons, you need to know exactly who you are dealing with. Further to some of the comments from the Front Bench opposite, if we had taken that attitude a few years ago, we probably would not have developed fingerprints or DNA. Clearly, the necessary technology exists. Does my noble friend agree that the technology looks so good that forgery would be virtually impossible?

Baroness Scotland of Asthal: My Lords, I endorse much of what my noble friend has said. I am always timorous about saying that something is impossible to forge, as we know the ingenuity of some criminal elements, whose sole purpose is to defeat anything that we seek to do. I endorse wholeheartedly the statement that forgery will be exceptionally difficult. The card will be more difficult to replicate than any other document that we have. It is therefore of major interest for us to pursue the issue vigorously. I also agree with my noble friend that the technological developments have benefited our ability to detect and deal with crime efficiently and effectively. We have an aspiration that those technological developments will continue to our benefit.

The Earl of Onslow: My Lords, will the noble Baroness explain why making it compulsory for someone on a low income to buy an identity card is not a tax? What she has just said, I could have heard in South Africa from Verwoerd, Home Secretary in 1947, arguing for the pass law. I could hear a Waffen-SS officer saying, "Ihre Papiere bitte". That is the road down which we are going if we make people have identity cards.

A Noble Lord: My Lords, that is rubbish.

The Earl of Onslow: My Lords, it is not rubbish. If people must carry papers wherever they go, or possess them, that is the road to tyranny. Does the noble Baroness understand that?

Baroness Scotland of Asthal: My Lords, I would like to quieten the noble Earl's beating heart. We do not propose to make the carrying of papers compulsory. We will have two stages: I have explained the first, and the second will be debated. I do not agree that we might subsequently be accused of being improper in our actions, as implied in the examples that the noble Earl has given.
	I reiterate, and it is stated in the documentation, that the scheme would fund free cards for all 16 year-olds and a reduced charge of £10 for those on a low income. We are also looking at how those in retirement will be looked after. We are looking at all those issues. We do not accept that it is a tax. None of the European compulsory schemes that charges a fee is classified as a tax by its own statistical authorities. We do not believe that it can so be described either. We have exercised our own independent judgment, and we do not believe that it is a tax. In particular, it will not be a tax for those with the benefit of getting the cards free.

Lord Tanlaw: My Lords, we have to provide a lot of information to obtain firearms and gun licences, including eye-to-eye confrontation with a policeman, a visit to the home and a similar expense to that of an identity card. Yet there seems to be no decrease in gun crime. From questions asked in this House, the Government cannot say what proportion of gun crime has been committed by holders of current firearms or shotgun licences. If the Government are unable to monitor the information given in great detail by holders of firearms and gun licences, what hope is there of being able to monitor or distinguish the information that is to be given by identity cards?

Baroness Scotland of Asthal: My Lords, in trying to bring the provisions together, we have been assiduous in the crafting of the proposals so that they will give the best opportunity to monitor issues that arise. That is why we are doing it incrementally. There are a number of issues with which we must grapple. At the end of the first stage, we will have the information which will enable us to have a proper, full and robust debate about these issues. That is what we will do. Noble Lords should know that our attack on crime is becoming increasingly successful. Obviously, I hear what the noble Lord says about gun crime. But even there there are significant improvements.

Baroness Thomas of Walliswood: My Lords, perhaps the Minister could return to a question asked by my noble friend Lord Russell about a statement in the Statement; namely, that as soon as the database is available—before the second stage of the process—we will commence issuing identity cards to EU and foreign nationals seeking to remain in the country. Is that part of a mutual process which will ensure that we will have to produce identity cards if we want to live, for example, in France? Living and working in each other's countries is part of the constitution—long before the creation of the existing new constitution—of the European Union. How do those two things fit together?

Baroness Scotland of Asthal: My Lords, the means by which the two things fit together is that, as noble Lords will know, there has been an issue for a while about what documentation is available to foreign nationals resident in this country for more than three months. As much as possible, we wish to make free movement backwards and forwards easier for those people. Noble Lords will know that the majority of our EU partners have an identity card which is also used for travel.
	Making the facility available for nationals from countries in the European economic area will enable full compatibility with European law. It will not change the ability of our citizens to move throughout those countries using the passport, which is recognised as an appropriate means of travel. It is right that, as a group, this is an issue which we should seek to address. The noble Baroness will concede, too, that our European partners do not have the difficulties about an identity card in terms of the principles that exercise us. I hope that it would be very much welcomed by foreign and EU nationals who live here for more than three months.

Lord Campbell-Savours: My Lords, that is excellent news for those of us who have campaigned on the issue of national identity cards for years. Perhaps my noble friend will turn to the question of draft legislation and the manner in which it will be handled. We hear that there will be a Bill produced perhaps in the new year. Would that not be an excellent opportunity to use the pre-legislative scrutiny arrangements referred to by the noble Lord, Lord Dholakia? That would enable both Houses—it is a joint committee structure—to penetrate the argument very deeply and to get to the main issues.

Baroness Scotland of Asthal: My Lords, of course I hear what my noble friend says. I also know of his passion for these issues. I thank him very much in the way that I hope I thanked the noble Baroness, Lady Sharples, for her support. My noble friend is right. This is something for which many have hungered, and which some almost gave up hope of ever obtaining. I am very pleased to satisfy the noble Lord in that regard.
	As to pre-legislative scrutiny, the chairman of the Home Affairs Select Committee indicated that it will want to examine the Bill. We cannot make a commitment at present about the timing of the draft Bill. As I say, we intend to proceed by incremental steps. That is as much as I can say to my noble friend now. But I hear what he says; those matters will be looked at and taken into consideration.

Lord Avebury: My Lords, in relation to the use of first-phase cards as a combined driving licence and passport, will it be the intention to write to the cards such information as endorsements on the licence and visas, where required? In the latter case, will that not require that we have international agreement on data standards and encryption to be used throughout all the countries which are to accept these documents as passports?

Baroness Scotland of Asthal: My Lords, I have tried to make clear that we understand the enormity of the task at hand. First, we must get the biometric data in an acceptable form for passports and driving licences. The noble Lord will concede that no decision has yet been made as to which methodology will prove to be the most felicitous. There is iris identification, fingerprint identification and face recognition, all or any of which may prove the best way forward. No decision has been made.
	Once advancement has been made as regards passports and, perhaps later, driving licences, consideration will be given to how and whether to merge and what use could be made of it. All the questions raised by the noble Lord will have to be considered.

Lord Avebury: My Lords, international?

Baroness Scotland of Asthal: My Lords, the noble Lord said international, but I am not sure what he means by that.

Criminal Justice Bill

Lord Bassam of Brighton: My Lords, I beg to move that the Bill be now further considered on Report.
	Moved, That the Bill be further considered on Report.—(Lord Bassam of Brighton.)

On Question, Motion agreed to.
	Clause 247 [Determination of minimum term in relation to mandatory life sentence]:

Baroness Anelay of St Johns: moved Amendment No. 225:
	Page 142, line 31, at end insert—
	"(7) This section does not apply if the offender was under 18 when he committed the offence."

Baroness Anelay of St Johns: My Lords, in moving Amendment No. 225, I shall speak also to Amendment No. 237, which is consequential to Amendment No. 225. The purpose of the amendment is to remove juvenile offenders found guilty of murder from the sentencing framework proposed in Schedule 19; that is, those offenders who were under the age of 18 when they committed the offence. The determination of the minimum term to be served in such cases would then be a matter for judicial discretion.
	The Children's Society has no doubt briefed other noble Lords as well as myself on the matter. In another place, my right honourable friend Oliver Letwin and his colleagues made it clear in their debates on the Bill that we object in the strongest terms to the inclusion of young people under 18 years old in Schedule 19. When we debated the issue in Committee, the Minister said that she thought it necessary and desirable to include young persons in the provisions. We disagreed then and we disagree now. She said:
	"It is very rare for murders to be committed by very young juveniles".—[Official Report, 14/10/03; col. 870.]
	She is right and that is, mercifully, true.
	The Minister argued that it was not right to have a substantial disconnection around the age of majority and that she would be worried if the new principles were seen to apply to an immature 18 year-old and not to a 17 year-old. However, we argue that it is right to follow the current legal definition of a child enshrined in the Children Act 1989 and the UNCRC. In respect of these provisions, it is therefore appropriate for a cut-off to be at 18 years old.
	In Committee, the Minister raised a valid point when she said that my amendment would leave young people without any right to receive judicially determined tariffs because the Bill repeals Section 82 of the Powers of Criminal Courts (Sentencing) Act 2000. The Children's Society suggested a solution, which is in the form of my Amendment No. 237. Section 60(1) of the Criminal Justice and Court Services Act 2000 inserted Section 82A into the Powers of Criminal Courts (Sentencing) Act 2000.
	The section applies when a court passes a life sentence that is not fixed by law or where the offender is under 18 years old when he or she committed the offence requiring the sentencing court to specify the period that should be served. This section is repealed in Schedule 28, paragraph 98 of the Bill. Amendment No. 237 would, therefore, delete paragraph 98(2).
	This amendment would work; it would not remove the mandatory life sentence for minors who are found guilty of murder—life sentence should still follow. It would preserve the current position whereby the trial judge fixes the minimum period to be served. It should always be remembered, as in every case, that the minimum period is not necessarily the maximum period that will in fact be served.
	The Minister undertook to consider the House's view before we reached Report, although she made it clear that she thought it was unlikely that the Government would wish to remove juveniles altogether from the framework on murder. I very much hope that she will be able to say today that the Government have reflected further on the representations that have been made and that they will either accept my amendment as it stands or say that they have decided to bring forward their own similar amendments on Third Reading. I beg to move.

Baroness Walmsley: My Lords, I support this amendment on behalf of these Benches. I remain convinced, despite our discussion in Committee, that the discretion of the trial judge to set the minimum custodial sentence before the offender's case can be considered for early release should be retained. It is worth emphasising that we want only to ensure that early release can be considered at a point to be determined by the judge. There would, of course, be no guarantee that early release would be recommended.
	In responding to our concerns that the welfare of the child principle is not being upheld by this part of the Bill, and on other occasions, the Minister has pointed out that there are times when the protection of the public should come first. That may well be so, but that is the job of the parole board—to consider the matter of dangerousness at a certain point in time and regularly thereafter. If there was still a risk to the public, early release would certainly not be given. Therefore, I do not believe that the Minister's argument in Committee can apply.
	The proposed starting point of 15 years would mean that children sentenced for murder would be held well beyond the point at which they cease to be dangerous. Therefore, this measure does not comply with our obligations under the UN Convention on the Rights of the Child. As the Minister conceded in Committee, murders committed by minors are rare and do not fall into a pattern. All the more reason, therefore, that judges who have had many years in courts assessing the special circumstances of hundreds of cases should retain the discretion they currently have.
	The noble Baroness, Lady Anelay, mentioned the cut-off point of 18; the Minister had said that it was arbitrary. Given that some young teenagers are remarkably mature and some older teenagers remarkably immature, that could also be said of adults. It is really rather a good argument for deleting the new principles altogether—for adults, too. Taking the argument to its logical conclusion, perhaps we should have no legal cut-offs at all, because there will always be someone who will fall just outside them.
	I remind your Lordships' House of our obligations under the UN Convention on the Rights of the Child, which are to have a separate system for dealing with children in trouble with the law, ensuring that the best interests of the child are a primary consideration and that custody should be a last resort and for the minimum necessary amount of time. These measures contravene all those factors, for the reasons I have just mentioned.
	The welfare principle has been emphasised by the noble and learned Lord, Lord Browne-Wilkinson, in the Venables and Thompson case. He said,
	"the judge is bound by Section 44(1) of the Children and Young Persons Act 1933. Therefore in imposing such a tariff he must take into account the need for flexibility in the treatment of a child and, in so doing, will set the minimum tariff so as to ensure that at the earliest possible moment the matter comes under the consideration of the Parole Board".
	The Sentencing Advisory Panel and the Court of Appeal practice statement both indicate that what the Government are doing in this clause is wrong. Indeed, the joint effect of the provisions of the Criminal Justice and Court Services Act 2000 and the new statutory minimum would be such that the consideration of welfare would be well nigh impossible.
	As my noble friend Lord Thomas of Gresford reminded us in Committee, the effect of this and other measures will be to ratchet up sentences and to put the courts into a straitjacket. The Minister's comments in reply lead me to think that she believes the public are clamouring for this. I do not believe that is the case at all. The public well understand the need for proper punishment for serious crimes and the protection of innocent people. However, they also understand the nature of children, the impact of their immaturity and life experience on their behaviour and the need to treat them differently from adults. This clause does not do that, and I strongly urge the Minister to listen to the concern of the House, the judiciary and children's organisations about this. I strongly support the amendment of the noble Baroness, Lady Anelay.

Baroness Mallalieu: My Lords, I should like to add my voice to this debate: My perspective is slightly different. I did not intervene on this matter in Committee, and I wonder if I might briefly do so now.
	I have had the privilege of representing a number of children who have been accused of murder and, on occasions, have subsequently been convicted. It has been my experience that in some cases, a remarkable change has already occurred by the time the trial takes place. The child has been in secure accommodation and has, in some cases, received attention which was much needed and brought about very rapid change.
	I should like to give an illustration. I once represented a boy, aged 16, who was subsequently convicted of not one but two murders. Having spent nearly a year in secure accommodation, he came to his trial with such determination to better himself that he had become interested in subjects which had occupied none of his time before—he had been a truant. Arrangements were made so that his trial was delayed each morning so that he could take his GCE examinations, which he was passionate to do, and which he passed. He is now in the process of serving his sentence.
	Given that children often undergo a remarkable change when they receive treatment and attention which may have been desperately needed before, it seems to be a major mistake to abandon flexibility within the system. There may be rare cases in which this would be necessary or valuable, but we should not lose the flexibility; I am therefore very concerned about the application of Clause 247 to children. I hope that the Minister will adopt one of the two courses that has been urged on her by the noble Baroness, Lady Anelay.

Lord Carlisle of Bucklow: My Lords, I strongly support my noble friend Lady Anelay and agree with every word that the noble Baroness, Lady Mallalieu, has said. Like her, I have also defended people under the age of 18 who have been charged with murder, and I share the views that she has expressed.
	Serious and grave as the offence of murder is, it seems horrific that the judge should start with what effectively is a minimum of 15 years in prison for a person of 16 or 17, without the opportunity for that child, who will mature and change over the years, to be released at an earlier stage. Had we on this side of the House introduced this measure, I wonder what the Minister would have said about it.
	Let me make it clear that I do not like Schedule 19, and I hope one will have the opportunity to debate it under the amendments of the noble and learned Lord, Lord Ackner. We are talking about using any of its schedules and applying them to immature young people of 16 or 17. In the two cases I can think of, one was clearly a bag snatch which went wrong, and the other a fight in a school playground. Are we really saying that for people who are convicted of murder in those circumstances—whatever may have happened to them since they committed the offence, however appalled they are about what they have done—the judge should be required to consider 15 years as the appropriate time? It is not a 15-year sentence, because 15 years is the equivalent of a 22-year sentence, but it will be 15 years before they can be released. Like the noble Baroness, Lady Mallalieu, I hope the Minister will think again about this and accept at least that this schedule should not apply to those under 18.

Baroness Stern: My Lords, my name is on Amendment No. 225, and I also support Amendment No. 237. The arguments have been very well put around the House, and I will be brief.
	I emphasise that the UK Government have signed up to a range of international instruments about the rights of the child. Those were not forced on us; we signed them willingly. They are all based on certain principles—that children are not adults, that children must be treated differently from adults, and that the measures taken must be in the best interests of the child. Although society must be protected from children who are genuinely dangerous, children, whatever they have done, must be protected by society.
	The proposed starting point of a sentence of 15 years for a child convicted of murder is in that context unacceptable. When an important country such as the United Kingdom allows itself to weaken the commitment to international instruments of such importance as the Convention on the Rights of the Child, other countries think that they can get away with that as well. We are setting a very bad example.
	I do not find the arguments advanced in Committee by the noble Baroness, as compelling as she normally is, totally convincing. She said that such cases were very rare, which is the case. That suggests that an individual response to each case is appropriate, rather than the approach taken in the Bill. She also cited the possibility of inequity if an immature 18 year-old is subject to the provisions and a mature 17 year-old is not. That is an argument not for including children in the scheme, but against the whole scheme.
	I very much hope that the Minister will be able to bring some satisfaction to a number of us by reporting on the review of principles in relation to juveniles that she promised in Committee, and agreeing that this measure is a step too far.

Earl Russell: My Lords, I made a very brief contribution on the sentencing part of the Bill in Committee, to which the Minister made a very generous and warm-hearted reply. Her defence was that she stood for consistency. That is a perfectly good argument; consistency is indeed a virtue. However, the question that must arise is, "Consistency in what?". Consistency as at present applied in the Home Office must necessarily consist of what can be put down on paper and measured.
	It is interesting to compare that with the approach of the 17th-century court to consistency. It, too, believed in consistency, according to whether the prisoner showed remorse, whether the crime had been carefully premeditated, and in particular whether it was conducted selfishly for profit or was the result of the mood of the moment—whether the person intended to produce the result that they did. Those are perfectly valid considerations, but they cannot be judged without observing the demeanour of the witness. Indeed, it is difficult even to judge them by reading the transcript. They are questions of consistency that must of necessity fall to the trial judge.
	What I cannot see is why one type of consistency—measurable, quantifiable thought—should be sacrosanct and the other sort of consistency totally ignored. If we want to be consistent, we must try in each case before us to strike the balance between the two types of consistency.
	A case occurs to me. I admit that it is fictional, but it could perfectly well have happened. Let us suppose that, on the Channel Islands in 1940, a boy of 12 observed the invading Germans open his garden gate and march up his front path. He took his father's shotgun off the wall and fired, killing one of them. The Germans marched straight into the house, seized his father and shot him dead. The remorse that that boy would have felt would last the rest of his life. It is not consistent to treat that entirely on a level with a premeditated criminal who steals habitually for profit.
	If we want consistency, we have to hear the evidence of the trial as well as the quantifiable statistics. That is much more difficult to do with children than with adults, because children are much more likely to perform certain unpremeditated action without full understanding of its consequences. That is a very strong argument for accepting the amendments.

The Earl of Listowel: My Lords, I strongly support the amendments. I want to clarify a point where there may be slight confusion. I am sure that the Minister will clarify that the Government do not seek to impose a minimum sentence for children. The provision is a minimum starting point, and it will be made clear that if the judge deems it suitable to have a minimum sentence of zero, that would be the case.
	What has been the custom in the past is that the minimum starting point is discussed. Then the Lord Chief Justice advises in his practice statement that the minimum starting point, in this case for children who murder, is a certain number of years. Recently, the decision was that that should be 12 years. The Government propose 15 years, which is three years extra to the minimum starting point. My concern is that, as a result of what the Government propose, we will hold children and young people in custody for longer and long past the time when they are safe to return to the public domain.
	I should briefly like to remind the House of the situation of such children. As many noble Lords have said, although the children have done terrible things they are also often very vulnerable. In Young and Dangerous, the research of Professor Boswell in 1996, she looked at a third of the children in custody for serious offences or murder. She found that 72 per cent of the children had been abused. That evidence was corroborated by at least one practitioner working with the children, and she felt very strongly that it was an underestimate of the number of children abused. Half the children in the juvenile establishment have been in care or in contact with social services. The rates of mental disorder are far higher than in the general population. Some 45 per cent of children in care have mental disorders, which is four times the average, and 90 per cent of children in residential accommodation in children's homes have mental disorders.
	I do not wish to tire the House any further, but when we talk about Sure Start and the Green Paper, Every Child Matters, we are thinking about changing the culture and making this country a better place for children and families. I fail to see how being tougher on children—even children who commit the most terrible crimes, given that they often have horrible and horrific starting points in their lives—fits with the direction of improving the conditions for our most vulnerable families and children. If one looks again at the longitudinal research, one sees that such children come from the poorest and largest families with a history of family breakdown and punishment within the family, where the child cannot regularly predict what the parent will do in response to its behaviour.
	I look forward to the Minister's response. She always tries to be as helpful as possible. With her long experience of work in the area, I am sure that her response will be well worth listening to.

Lord Thomas of Gresford: My Lords, it is my experience that children who commit crimes of serious violence are damaged children. That encompasses everything that the noble Earl said a moment ago. In this country, it is part of our society that we bend all our agencies in an attempt to help children to get over the disadvantages of their background, their lack of education, the housing from which they come, the bad parenting, and all other factors that have caused them to be damaged. However, we then come to adulthood, which we generally place around or about the age of 18, when we have to say to offenders, "I'm sorry. We appreciate that you have come from a terrible background and that you are a damaged person, but society can no longer function if we do not treat you as a person entirely responsible for your actions". It is at that point that the division is generally and should be made. The drawback of the Bill is that it does not seek to draw any distinction between children and adults in Schedule 19, which I shall criticise later for other reasons. Therefore, I entirely support the amendment.

Lord Donaldson of Lymington: My Lords, I shall make two points, rather different in character. First, when I was a Queen's Bench judge, dealing not particularly with murder, but with a range of offences, I came to the conclusion, rightly or wrongly, that the magic age was approximately 24. Before that age, there was a real chance of reformation; after it, it became much more doubtful. Of course, I do not suggest that that is a precise cut-off point, but it is an important point.
	My second point is unrelated. It concerns me in relation to the whole of Schedule 19 and its effect on children. Judges take an oath to do justice to all men: "I agree according to law and the customs and usages of the realm". However, if a judge is faced with a situation in which the law requires him to do injustice, or injustice as he sees it, he has a very real problem. I suspect that in most cases he will say to himself, "Well, I am not prepared to do this, so I will now spend a lot of time deciding how I can make it look respectable not to do it". The judge may then turn round and cite "the age of the offender" or "the mental condition of the offender". In other words, he will start not, as the Government would expect, from the provisions of the schedule, but from what is in his view a just result.
	Having started from that point, he will try to see how he can bend the various provisions of the statute overtly to justify it, although that will not be his personal justification. That is not a satisfactory situation. If one is going to give judges the authority that they have always had and expect them to do justice in individual cases, according to what they see before them and the evidence they hear, one must let them have discretion. Otherwise, one will either slowly erode their passion for justice or erode the effect of the law. I hope that the latter will be the case.

Lord Ackner: My Lords, this is yet another case which is covered by the memorandum which the Lord Chief Justice filed in the Library as representing his views and the views of the judges sitting in the Court of Appeal Criminal Division. I shall not take up your Lordships' time in reading it all out. I shall content myself merely with drawing attention to paragraph 62 on page 19, in which the Lord Chief Justice states:
	"Many of those involved, if not all, come from a disadvantaged background. Those who have responsibility for their upbringing after they are sentenced usually do a most remarkable job of bringing up these youngsters and they can be transformed in consequence".
	I suggest that in any case involving a child the ability to have the maximum flexibility in the treatment of that child is absolutely essential.

Lord Clinton-Davis: My Lords, I support the view that judges should be able to exercise discretion. The onus falls heavily on my noble friend the Minister to aver that I am wrong. She has said that the cases that we have to consider are rare. That argument goes against her rather than for her. If they are rare, the judge should be able to exercise discretion rather than not. We have heard a raft of opinions expressed against her proposition. Who supports her proposition? Anybody at all? I may be wrong, but I would be very surprised if anybody were to come to her aid, apart from officials in the Home Office, who, I am sure, are exercising a benign influence on her.
	I do not usually vote against my own government, but certain aspects of the Bill are unacceptable and this schedule is one of them. I am not sure that I shall vote against the Government, but I shall at least abstain. My noble friend may be able to persuade me that I am utterly wrong, but I doubt it. I am a great fan of hers and usually—but not always—take her advice, but I will be surprised if I do so on this occasion.

Baroness Scotland of Asthal: My Lords, my noble friend has thrown down the gauntlet and I am anxious to take it up. I empathise with all that has been said about the rarity and the difficulty of seeking to sentence juveniles.
	I should point out to my noble friend Lady Mallalieu and the noble Lord, Lord Carlisle of Bucklow, that I too have had the privilege of representing children of tender years who have been in the tragic situation of having committed heinous offences, not least of which being murder. From practical experience, I recognise, as has been pointed out by my noble friend Lady Mallalieu, the noble and learned Lord, Lord Donaldson, and the noble Lords, Lord Carlisle and Lord Thomas of Gresford, that there can on occasion be dramatic changes in the nature of the child's behaviour.
	However, I also recognise that there has to be a framework within which such decisions are made. I fully understand the purpose of the amendment moved so eloquently by the noble Baroness, Lady Anelay, and supported with such warmth by the noble Baroness, Lady Walmsley. It seeks to cure the flaw in the previous amendment and direct attention to the problem with the proposed amendment. It provides for juveniles to retain judicial tariff setting by retaining the current tariff-setting provisions for juveniles under the Powers of Criminal Courts (Sentencing) Act 2000. I reassure noble Lords that we have given the most anxious and careful consideration to whether it would be right and proper to remove juveniles from those provisions. We have concluded that it is essential for juvenile murderers to have minimum terms set according to those principles.
	I want to make one issue absolutely clear. My noble friend Lord Clinton-Davis says that the judge must have discretion and I do not argue with him. The view was echoed by the noble and learned Lords, Lord Donaldson and Lord Ackner, both of whom have great experience of exercising that judicial discretion. Schedule 19 preserves judicial discretion. It is often forgotten, so it is important to recite it, that paragraph 8 of Schedule 19, in dealing with the aggravating and mitigating factors, states:
	"Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order".
	So there, enshrined in the schedule—preserved—is the exercise of judicial discretion.
	We therefore start with 15 years, but that is not where the judge, in exercising his discretion, may end. I also say to the noble and learned Lord, Lord Donaldson, that this is not a distortion of the judge's exercise of discretion. If one looks at the mitigating and aggravating features, one sees that those are all issues which a court should properly take into account when exercising its discretion and in seeking to do justice not only to the defendant but also to the victims and their families who have suffered and suffered grievously.
	I say, too, that it is also important for the victims and their families to understand the basis upon which the court came to its decision. My noble friend Lord Clinton-Davis asked: who supports this provision? If one has had the privilege that I have had in talking to many of the families of the bereaved, one realises that they want to understand the system. It humbles one that they do not often seek vengeance, but what they do seek is an understanding of why the life of their loved one—often their child—was taken and why the court imposed that sentence upon the perpetrator.
	These provisions enable the court to explain why and how the court came to that decision. I do not believe that that task is beyond our judiciary because it is a task that many of our judges have undertaken and discharged with great distinction for many years. Some of the best judges in this country make those decisions in a way that all who listen do understand. That is what these provisions achieve. They do not set a straitjacket. They do not say to the judge, "You must impose this". They set a framework within which the judges should work better to explain the decisions they make. I make that as a first point.
	I do not apologise for reiterating some of the points I have made because I need to respond to what was said by the noble Baronesses, Lady Anelay and Lady Walmsley. I hope that they will try, as did I, to listen to the points that are made. I cannot stress sufficiently the importance of the figures. As a number of noble Lords have said, cases of murder by very young juveniles are extremely rare, with only one case on average every five to 10 years. Figures kept since 1998 indicate that since then 78 out of 81 murders by juveniles were committed by 15 to 17 year-olds, and none at all by children aged 10 to 11.
	Excluding juveniles from these provisions would therefore have little effect on protecting very young offenders. Since the overwhelming majority of juveniles affected are in the bracket nearest the age of majority, this would lead to the undesirable possibility of sudden and considerable disparity in tariffs between 17 and 18 year-olds. Such caps would also lead to a serious loss of fairness, clarity and consistency. That point was emphasised by the noble Earl, Lord Russell, when dealing with the benefits and disadvantages of consistency.
	It is also right to remember that the figures we are quoting are not too far from the reality with which we are currently faced. Juvenile tariffs in recent years have not been so far out of line with adult tariffs. Out of a sample of the 18 detainees in Her Majesty's prisons released on licence in 2000, the average tariff was almost 11 years and the average prison term served was 13.9 years. The minimum terms ranged from five to 16 years. There are therefore clear similarities in the levels.
	Juvenile tariffs currently tend to average between 10 and 11 years, so nothing in the provisions would cause there to be a disproportionate attack on the issue with which we are dealing. As regards age, paragraph 9(b) states that:
	"the fact that the victim was particularly vulnerable because of age or disability",
	must be taken into account, as must the age of the perpetrator. Age, as regards both the victim and the alleged perpetrator, used as a mitigating factor is echoed in paragraph 10. The courts can take those issues properly into account and can do justice in the way that noble Lords have sought.
	The noble and learned Lord, Lord Ackner, drew attention to the guidelines of the Lord Chief Justice and his comments on maximum flexibility. We believe that these provisions maintain that flexibility. Therefore, a clear, simple and transparent sentencing structure is essential in maintaining public confidence in the justice system, particularly when pertaining to the crime of murder which is understandably the most high-profile crime. We have carefully considered the views and concerns expressed in Committee, but we have concluded that they can be addressed within the framework as drafted for the reasons I have just given. The framework provides the courts with the ability to take proper account of the special needs of juveniles.
	It must be stressed that the starting points for the tariffs under Schedule 19 are not minimum sentences. Age is specified as a mitigating factor and the courts will have a discretion significantly to reduce from the starting points to arrive at sentences appropriate to the youth of juvenile offenders.
	In practice, courts may be inclined to follow a rule of thumb such as that set out by the Lord Chief Justice in his direction dealing with juvenile tariffs, where the starting point is lowered according to the extent by which the juvenile is below the age of majority. The statute would allow for that. We believe that this flexibility is sufficient to allow for the special needs of the range of juvenile offenders without excluding them from the framework.
	We have to ensure that everyone understands the basis upon which sentencing will be managed—that we will have the clarity and transparency we need so that the confidence which has diminished in our system can be restored. We believe that this framework—that is all it is; it is not a straitjacket, but a framework—does that which noble Lords would wish.

Lord Clinton-Davis: My Lords, before my noble friend sits down, I want to say that she has been very persuasive. However, I asked her to name a few of the people or organisations that supplied the view that this is a retrograde step. Will she now tell the House what organisations support the view that she has put forward so persuasively?

Baroness Scotland of Asthal: My Lords, your Lordships will know that when these proposals were being canvassed through the Auld review and so on, considerable consultations took place and support was voiced for the proposals. I cannot give noble Lords a list of all those who replied. However, I can certainly tell your Lordships that when I have been questioned outside this House about these provisions, I am usually asked by members of the public not why we are doing this but why we are not doing even more.
	Noble Lords will know that I chair the Inter-Ministerial Committee on Domestic Violence, which deals with the subject of victims and witnesses. I emphasise that the thrust of many of the concerns voiced there is: "We do not understand why those decisions were made. Help us to understand. What is the basis upon which judges came to the decisions? What rule of thumb was applied? How does this operate? What do they take into account, why do they take it into account, and how does it work?".
	We say that the framework gives everyone a basis upon which they can better understand what is being done. It is of no comfort to victims and witnesses to be told that an offence was committed by a juvenile in need; they need to understand why the court came to the decision that that should mitigate the sentence. They need to be told, and we believe that these provisions enable that to be done.
	I shall certainly be happy to supply my noble friend with a fuller response about those who urged us to implement this measure. However, since taking on the role of Minister of State with responsibility for criminal justice and dealing with this issue since June, I say openly that not one member of the public has approached me or talked to me about this matter saying that he or she does not want this measure. That is the reality.

Lord Thomas of Gresford: My Lords, has the noble Baroness ever heard a judge pass a sentence in a murder case without explaining the reasons for, and factors behind, the tariff which he imposes?

Baroness Scotland of Asthal: My Lords, I am reminded that this is Report stage. Therefore, I cannot give the noble Lord the courtesy of a reply. If I were able to do so, I would say that my experience is not held universally by all other members of the Bar.

Baroness Anelay of St Johns: My Lords, I thank all noble Lords who have spoken so forcefully in support of the amendments. I am particularly struck by the experience of the noble Baroness, Lady Mallalieu, who referred to cases in which she had been involved as a lawyer. She remarked, as did others, on the propensity of children for rapid change and said that it is a mistake to abandon flexibility in a system which sentences children. I believe that that must go to the core of what we are discussing today.
	The Minister says that there is a solution here, that paragraph 8 of Schedule 19 provides all the flexibility that one needs, and that here the judge does not have to sentence for 15 years but can apply a panoply of aggravating or mitigating circumstances. Of course, when the noble Baroness uses that argument, she is arguing against the whole of Schedule 19 because the logical extension would be to leave it to the judge entirely.
	The noble Baroness will know that, with some reluctance, I have agreed to go down a very stony path in agreeing with her that paragraph 8 of Schedule 19 may be sufficient refuge for adults. However, I cannot accept that it is a sufficient refuge for children. I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 225) shall be agreed to?
	Their Lordships divided: Contents, 202; Not-Contents, 113.

Resolved in the affirmative, and amendment agreed to accordingly.

Baroness Scotland of Asthal: moved Amendment No. 225A:
	Before Schedule 19, insert the following new schedule—

"PRISONERS LIABLE TO REMOVAL FROM UNITED KINGDOM:MODIFICATIONS OF CRIMINAL JUSTICE ACT 1991

1 In this Schedule "the 1991 Act" means the Criminal Justice Act 1991 (c. 53).
	2 In section 42 of the 1991 Act (additional days for disciplinary offences), in subsection (2) before the word "and" at the end of paragraph (a) there is inserted—
	"(aa) any period which he must serve before he can be removed under section 46A below;".
	3 (1) In section 46 of the 1991 Act (persons liable to removal from the United Kingdom) in subsection (3) after paragraph (d) there is inserted "or
	(e) he is liable to removal under section 10 of the Immigration and Asylum Act 1999".
	(2) Sub-paragraph (1) does not apply to any prisoner whose sentence relates to an offence committed before the commencement of this Schedule.
	4 After section 46 of the 1991 Act there is inserted—
	"46A EARLY REMOVAL OF PERSONS LIABLE TO REMOVAL FROM UNITED KINGDOM
	(1) Subject to subsection (2) below, where a short-term or long-term prisoner is liable to removal from the United Kingdom, the Secretary of State may under this section remove him from prison at any time after he has served the requisite period.
	(2) Subsection (1) above does not apply where—
	(a) the sentence is an extended sentence within the meaning of section 85 of the Powers of Criminal Courts (Sentencing) Act 2000,
	(b) the sentence is for an offence under section 1 of the Prisoners (Return to Custody) Act 1995,
	(c) the prisoner is subject to a hospital order, hospital direction or transfer direction under section 37, 45A or 47 of the Mental Health Act 1983,
	(d) the prisoner is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003, or
	(e) the interval between—
	(i) the date on which the prisoner will have served the requisite period for the term of the sentence, and
	(ii) the date on which he will have served one-half of the sentence,
	is less than 14 days.
	(3) A prisoner removed from prison under this section—
	(a) is so removed only for the purpose of enabling the Secretary of State to remove him from the United Kingdom under powers conferred by—
	(i) Schedule 2 or 3 to the Immigration Act 1971, or
	(ii) section 10 of the Immigration and Asylum Act 1999, and
	(b) so long as remaining in the United Kingdom, remains liable to be detained in pursuance of his sentence until he falls to be released under section 33 or 35 above.
	(4) So long as a prisoner removed from prison under this section remains in the United Kingdom but has not been returned to prison, any duty or power of the Secretary of State under section 33, 35 or 36 is exercisable in relation to him as if he were in prison.
	(5) In this section "the requisite period" means—
	(a) for a term of three months or more but less than four months, a period of 30 days;
	(b) for a term of four months or more but less than 18 months, a period equal to one-quarter of the term;
	(c) for a term of 18 months or more, a period that is 135 days less than one-half of the term.
	(6) The Secretary of State may by order made by statutory instrument—
	(a) amend the definition of "the requisite period" in subsection (5) above,
	(b) make such transitional provision as appears to him necessary or expedient in connection with the repeal or amendment.
	(7) No order shall be made under subsection (6) above unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.
	(8) In relation to any time before the commencement of sections 80 and 81 of the Sexual Offences Act 2003, the reference in subsection (2)(d) above to Part 2 of that Act is to be read as a reference to Part 1 of the Sex Offenders Act 1997.
	46B RE-ENTRY INTO UNITED KINGDOM OF OFFENDER REMOVED EARLY FROM PRISON
	(1) This section applies in relation to a person who, after being removed from prison under section 46A above, has been removed from the United Kingdom before he has served one-half of his sentence.
	(2) If a person to whom this section applies enters the United Kingdom at any time before his sentence expiry date he is liable to be detained in pursuance of his sentence from the time of his entry into the United Kingdom until whichever is the earlier of the following—
	(a) the end of a period ("the further custodial period") beginning with that time and equal in length to the outstanding custodial period, and
	(b) his sentence expiry date.
	(3) A person who is liable to be detained by virtue of subsection (2) above is, if at large, to be taken for the purposes of section 49 of the Prison Act 1952 (c. 52) (persons unlawfully at large) to be unlawfully at large.
	(4) Subsection (2) above does not prevent the further removal from the United Kingdom of a person falling within that subsection.
	(5) Where, in the case of a person returned to prison by virtue of subsection (2) above, the further custodial period ends before the sentence expiry date, subsections (1) and (2) of section 33 above apply in relation to him as if any reference to one-half or two-thirds of the prisoner's sentence were a reference to the further custodial period.
	(6) If a person returned to prison by virtue of subsection (2) above falls by virtue of subsection (5) above to be released on licence under section 33(1) or (2) above after the date on which (but for his removal from the United Kingdom) he would have served three-quarters of his sentence, section 37(1) above has effect in relation to him as if for the reference to three-quarters of his sentence there were substituted a reference to the whole of his sentence.
	(7) If a person who is released on licence under section 33(1) or (2) above at the end of the further custodial period is recalled to prison under section 39(1) or (2) above, section 33A(3) above shall not apply, but it shall be the duty of the Secretary of State—
	(a) if the person is recalled before the date on which (but for his removal from the United Kingdom) he would have served three-quarters of his sentence, to release him on licence on that date, and
	(b) if he is recalled after that date, to release him on the sentence expiry date.
	(8) A licence granted by virtue of subsection (7)(a) above shall remain in force until the sentence expiry date.
	(9) In this section—
	"further custodial period" has the meaning given by subsection (2)(a) above;
	"outstanding custodial period", in relation to a person to whom this section applies, means the period beginning with the date on which he was removed from the United Kingdom and ending with the date on which (but for his removal) he would have served one-half of his sentence;
	"sentence expiry date", in relation to a person to whom this section applies, means the date on which (but for his removal from the United Kingdom) he would have served the whole of this sentence."
	On Question, amendment agreed to.
	Schedule 19 [Determination of minimum term in relation to mandatory life sentence]:

Baroness Scotland of Asthal: moved Amendment No. 225B:
	Page 290, line 25, leave out from "orientation" to end of line 28 and insert "if it is committed in circumstances falling within subsection (2)(a)(i) or (b)(i) of section (Increase in sentence for offence aggravated by reference to disability or sexual orientation)."
	On Question, amendment agreed to.

Lord Ackner: moved Amendment No. 225C:
	Page 290, line 29, at end insert—
	"Nothing in this Schedule shall fetter the judge's own discretion in the individual case to set the sentence he thinks is appropriate."

Lord Ackner: My Lords, having regard to what the noble Baroness said, I have quite a simple task. She has maintained that I have all that I need to give the judges what I have asked for in my amendment; that is, that Schedule 19 should begin with the statement:
	"Nothing in this Schedule shall fetter the judge's own discretion in the individual case to set the sentence he thinks is appropriate".
	It is clear that the noble Baroness, Lady Anelay—who has not been able, no doubt for good political reasons, to support quite a number of my amendments—was unconvinced that by putting a reference to discretion in paragraphs 7 and 8 of Schedule 19, the discretion which the noble Baroness, Lady Scotland, emphasised the judge has is properly catered for. As the noble Baroness has confirmed that these two paragraphs provide that discretion, surely she can have no objection to making clarity, which she says exists, doubly clear by having this stated at the outset of the schedule. It cannot harm her in any way. She says that the discretion is there. It cannot in any way detract from her submissions. All it does is to transpose paragraphs 7 and 8 into the opening phrase of my amendment. If she does not agree to do that, it seems to me that paragraphs 7 and 8 will merely turn out to be a provision that obliges the judge to comply with the excessive sentences alleged to be minimum sentences in the schedule, and that is contrary to the justice of the position. I beg to move.

Lord Thomas of Gresford: My Lords, the noble Baroness has stressed over and over again, both in Committee and a short time ago, that she seeks clarity and transparency. If so, she should be able to answer my question with a "Yes" or a "No". Is there anything in the schedule which fetters a judge's own discretion in an individual case to set the tariff he thinks is appropriate?

Lord Carlisle of Bucklow: My Lords, if the noble Baroness says that in her view there is a discretion, what is wrong in writing that fact on the face of the Bill? We had the same argument at an earlier stage. The danger is that whatever she may say about them being starting points, the press, for one, will look on them as minimum sentences and comment on the sentences passed in that way. I hope that the noble Baroness will agree on this occasion with what the noble Lord and learned Lord, Lord Ackner, is saying.

Lord Clinton-Davis: My Lords, clarity is all important in my view. I gave the Government the benefit of the doubt when I voted on the last amendment. On this occasion, I do not know why my noble friend cannot accept the amendment moved by the noble and learned Lord, Lord Ackner. It puts the matter beyond any peradventure. Personally, I should have thought that that was highly desirable.

Baroness Kennedy of The Shaws: My Lords, judicial discretion is at the heart of good sentencing. I have recently returned from the United States. There the Attorney-General is seeking to inhibit judicial discretion. A similar debate is taking place. The senior judiciary of the Supreme Court of the United States is of one voice in its concern about this undermining of justice. So I hope that we shall hear clearly—and without any doubt—the Minister say in answering this amendment that judicial discretion is not being interfered with and that at the end of the day that is what should guide judges when sentencing.

Lord Donaldson of Lymington: My Lords, in the case of Pepper v Hart the Law Lords decided—wrongly I think, but that is beside the point—that in resolving any ambiguity or doubts about the meaning of a statute one could have regard to what the Minister had said. The Minister here has said that paragraphs 7 and 8 produce complete discretion. Are we now to have a position of someone outside saying, "Well, we know she said that there was complete discretion, but are we right in remembering that she would not accept an amendment which said exactly the same thing?"? Where will that leave us all?

Lord Morris of Aberavon: My Lords, I have listened very carefully to the arguments on the previous amendment. I heard the views of my noble friend Lord Clinton-Davis. I also gave the Government the benefit of the doubt. I have not so far intervened in the debate, but it seemed to me that the Minister made a most persuasive case to underline the fact that discretion existed. My experience of the judiciary is much more limited; I was only a mere recorder for a period of 20 years. I endorse fully the remarks we have just heard. It is of vital importance that discretion is spelled out on the face of the Bill if that is what the Minister intended in her remarks on the previous amendment.

Baroness Scotland of Asthal: My Lords, my short answer is that paragraphs 7 and 8 spell out discretion on the face of the Bill. However, that discretion, as with discretion in other cases, is to be exercised within the framework and in accordance with the law. No judge has an unfettered discretion to do whatever he pleases; he must apply the law as set out in statute. The statute here is plain.
	The judge must use the starting point as the judicial starting point. He then has to look at the mitigating and aggravating factors. I shall read paragraphs 7 and 8 if it assists for Pepper v Hart and other purposes. Paragraph 7 states:
	"Having chosen a starting point, the court should take into account any aggravating or mitigating factors, to the extent that it has not allowed for them in its choice of starting point".
	The starting point is set out in paragraphs 4, 5 and 6. Those provisions refer to the matters a court should take into consideration when arriving at that starting point. Paragraph 8 states:
	"Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order".
	The provision is there on the face of the Bill and available to be used. I know and hear what the noble and learned Lord, Lord Ackner, says about his chosen preference.

Lord Ackner: My Lords, I am very grateful to the noble Baroness for giving way. Is she agreeing that the current position today is what the future will also show? The current position today is that of course a judge does not have an unfettered discretion. Guidelines have been provided by the Court of Appeal. He must have regard to those guidelines. If he imposes a sentence that is, so to speak, repugnant to those guidelines the Court of Appeal, at the suit of the Attorney-General, will then put in force the sentence the judge should have imposed. That is the position today. Is the noble Baroness saying that from a discretionary point of view that is still unaltered?

Baroness Scotland of Asthal: My Lords, it is unaltered, save and except that the guidelines which will bind the judge are contained in the statutory framework which is here in outline. So the framework the court will have to apply is the statutory guidelines contained in Schedule 19. It is not the currently issued guidelines, because of course the whole point of Schedule 19 is to supplement the position because of the change brought about by Anderson. Your Lordships will recall that prior to that case the Secretary of State preserved an ability to alter the tariff imposed. As a result of Anderson that ability for the will of the people, as expressed through their elected Member, has gone. Therefore, it is for Parliament to decide the framework within which that exercise of discretion on behalf of the people of this country by the judiciary on individual cases should be set.
	So this is the framework; these are the guidelines. The noble and learned Lord is absolutely right that within the framework, within the statutory guidelines, the judge will still have the duty to exercise his or her discretion in accordance with the needs of the circumstances of the case. Within the guidelines, if judges are minded to depart from the starting points, they will have to state why they have done so. We believe that that will enable all who come to consider the judge's decision better to understand the route that he was taking.
	I also tell noble Lords that we hope—I know that this is an aspiration—that that may limit or hamper the ambit of ill-informed, misjudged comment about why the court reached its decision. I invite the noble and learned Lord not to press his amendment.

Lord Ackner: My Lords, the inability or unwillingness of the noble Baroness to accept the terms of my amendment suggests to me that there is an arriere-pensee in relation to the whole of Clauses 7 and 8. In those circumstances, I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 225C) shall be agreed to?
	Their Lordships divided: Contents, 69; Not-Contents, 115.

Resolved in the negative, and amendment disagreed to accordingly.
	[Amendment No. 226 not moved.]

Lord Ackner: moved Amendment No. 227:
	Leave out Schedule 19.

Lord Ackner: My Lords, I ask your Lordships to say that they are not content for Schedule 19 to remain part of the Bill and I shall be inviting noble Lords to use the Not-Content Lobby when the vote takes place. Often mistaken and enthusiastic noble Lords keep up the old business of going to the wrong place by mistake.
	Schedule 19 is, in the words of the noble Lord, Lord Windlesham, "sentencing by ministerial decree". It is the result of an angry, frustrated action by a Home Secretary who did not understand the requirements of the rule of law. When, in November 2002 the case of Anderson was decided in the Judicial Committee by reason of the human rights legislation, the Home Secretary no longer had any role to play as a politician in deciding how long someone should stay in prison. That is something that this House had been saying year in and year out. As a result, there was an intemperate outburst—

Lord Tordoff: My Lords, I am most grateful to the noble and learned Lord for allowing me to intervene. Perhaps he has confused the Report stage and the Committee stage. The Motion that he is moving is to leave out the schedule, in which case he would wish to vote Content. That would remove the schedule, which has already been agreed.

Lord Ackner: My Lords, I am sorry, but I cannot agree. This is a Motion to persuade the House that they are not content in the continuation of Schedule 19. Perhaps the noble Lord would be kind enough to confirm that I am right because he is so much more experienced than I.

Lord Tordoff: My Lords, I doubt that, but with some reluctance I have to say that I think the noble and learned Lord is wrong. The proposal set out in his amendment is to leave out Schedule 19. I understand what he seeks to do, but he is moving to leave out the schedule and therefore he should advise people to vote Content on that proposal.

Lord Ackner: My Lords, very well. I am always happy to learn from my elders and betters, or perhaps I should say "betters". In those circumstances, I invite noble Lords to go on being content with everything I submit, as has happened in the past.
	I was saying to noble Lords that there was an intemperate outburst by the Home Secretary, demonstrating that he had not understood how the rule of law works. That was exacerbated by a ruling in relation to the lawfulness of an immigration law or order which he had promulgated.
	The history of this situation bears a little repetition. Your Lordships will know that the sentencing guidelines were in effect invented by the former Lord Chief Justice, the noble and learned Lord, Lord Lane, advising judges on the way of viewing offences according to their nature and providing a set of brackets within which they could consider imposing a sentence, lowering or raising it according to mitigation or aggravation. The judiciary has shown no reluctance to accept assistance and in 1998 the Crime and Disorder Act was passed. That legislation brought into existence the Sentencing Advisory Panel. By that Act, the panel investigated, researched and sought advice from the public. It consisted of a variety of disciplines—although with very few, if any, lawyers—and provided guidance.
	The Court of Appeal, which was then laying down sentencing guidelines, was obliged to take into account what was proposed by the panel. If the Court of Appeal itself had been contemplating taking the initiative of laying down guidelines, it would have to consult the panel. That worked smoothly and satisfactorily over a period of some four years, by which time the Court of Appeal had accepted the advice of the panel and imposed the necessary decision on 10 different species of offences.
	In 2002, one year before the schedule was produced, the panel made suggestions with regard to what were the appropriate sentencing guidelines for murder, the offence to which Schedule 19 is directed. The Court of Appeal had regard to that advice and was minded to accept it, but first consulted with the Attorney-General, the Lord Chancellor and the Home Secretary, the very one responsible for Schedule 19. They made very minor alterations, which were accepted, and the guidelines were introduced via a practice direction given by the Lord Chief Justice. Everything proceeded swimmingly until the angry reaction of the Home Secretary produced Schedule 19.
	It is perhaps worth breaking off at this stage to recall the "holier than thou" homilies to which the public have been treated by the Home Secretary on how to put back trust in the Government; on how essential it was for any government to work effectively to have that trust. The Home Secretary said that the only way to do that was to be "patently honest". Your Lordships may not think that the history I have outlined fits very happily into that expression.
	The schedule purports to lay down minimum starting points, and they are at least 50 per cent in excess of the guidelines in the Lord Chief Justice's practice direction. In the period of the year between the Court of Appeal's guidelines and the emergence of Schedule 19—Schedule 17 as it was previously—nothing occurred to suggest that the guidelines which were being followed pursuant to the Lord Chief Justice's practice direction were in any way proving inadequate, not being followed or had any disadvantages about them. On the contrary, it all went swimmingly.
	The proposed 50 per cent increase will obviously have an effect, but the Home Secretary has limited his attention to the effect it will have in 10 years time, when the murderers with whom one is concerned would be coming out from prison but for the fact of the 50 per cent increase. He has totally overlooked the fact that sentencing guidelines have to be consistent, and if you up by more than 50 per cent the sentence for murder, you have got to do the same with all other serious offences. There is no question about waiting 10 years for that to happen; that will have to happen forthwith. The effect that will have on the demands on prison accommodation will be disastrous. The schemes to add currently to prison accommodation will be swamped and the position will be quite impossible.
	So there has been produced this oddity. Parliament purports to set up the Sentencing Guidelines Council in the Bill—which we considered recently—and then the Home Secretary has pre-empted the Sentencing Guidelines Council by saying, "Before you begin to operate, I will tell you what has to be done in regard to murder cases, and what I am going to tell you will involve the whole of the sentencing pattern which has existed up until now being distorted". It will be distorted by this extraordinary increase.
	That is why I suggest that the situation created by Schedule 19 requires the robust action of taking out the entire schedule. Only thus can one return to what Parliament initially proposed—the Sentencing Guidelines Council laying down what should be the appropriate sentences. It is only thus that one can prevent this extraordinary distortion, the result of a distorted approach to the two decisions to which I have referred. For those reasons, I beg to move my amendment.

Lord Thomas of Gresford: My Lords, I have added my name to the amendment. The justification for Schedule 19, we have been told, is that it introduces clarity and transparency in the sentencing process in a way, it is implied, that does not exist at the present time. To illustrate how the practice and procedure of the law develops over a period of time, I should tell your Lordships that when I was first at the Bar it was utter anathema then for prosecuting counsel to talk to witnesses, whether or not they were victims. It was almost a professional foul to do so. I entered at the end of a long tradition where the leading counsel for the defence in a murder case did not speak to his client at all. He communicated with his client through junior counsel and received his instructions from the solicitor. I was a junior to a somewhat elderly silk who took that view and did not speak to his client from start to finish of the case.
	Things have moved on dramatically. Over the past 50 years or so it has been customary for leading counsel for the defence in a murder case to have lengthy consultations with his client. In very recent years—within the last two or three—it has become appropriate to talk to defence witnesses. There is now a duty laid upon prosecuting counsel to talk to victims, their families and witnesses. It is quite the reverse. At the beginning of my career, the rationale was that counsel appearing at the Bar would be removed entirely from the emotion of the case and would conduct it with all the forensic skill that they had, unclouded by the views that were pressed upon them by either the prosecution witnesses, the victims or the defence.
	We have a position today where it is the positive duty of prosecuting counsel to explain to a victim, family or witnesses why the judge has done what he has done. The noble Baroness told us that she was an officer in, or played a part in, an organisation that is concerned with victims. She said that they do not understand why a particular sentence has been passed. Victims will never really understand why a certain sentence has been passed—particularly in a murder case—at the end of the trial because they are overwhelmed with emotion for what has happened.
	So let us consider Schedule 19, which we are now told lays down statutory guidelines. I made the same point in Committee as the noble and learned Lord, Lord Ackner, made a moment ago when I said that it was an oddity that we should have statutory guidelines for fixing a tariff in the same Bill that sets up the Sentencing Guidelines Council. It is curious that the Government have not waited to hear what the deliberations of that council are before setting what the Minister describes as "sentencing guidelines". However, it goes beyond that.
	What is now proposed is that the judge should take a mechanistic approach to sentencing. He has the Bill in front of him, which contains a tick-list or shopping list of aggravating and mitigating factors. He ticks them off, asking himself whether he has considered this or that. What on earth do the Government think that a judge does at the present time other than to consider all the aggravating and mitigating factors as they appear to him in a case? What else is he there for but to consider the facts of the case, the circumstances in which the crime was committed and the personal circumstances of the defendant before he sets his tariff?
	Why must we put that process into a straitjacket, as I described it in Committee—a tick-list to put into statutory form what anybody making a decision would do anyway? Taking any important decision in one's life, one will set up the factors in favour of the decision on the one side and the factors against it on the other, and come to a conclusion. If one was forced by a statute before one took out one's mortgage to consider one's wages, one would think it ludicrous to be placed in a straitjacket of that sort.
	The other aspect of Schedule 19 about which the Government are being very vague is the purpose of the "starting point". They do not call it the "norm", so that sentences would be either larger or smaller but the average would be somewhere around the norm—they call it the starting point. If the Minister, as I hope she will be, is to be followed on the Pepper v Hart principle after the debate we had recently about young people, we learned that one can start by taking anything up to four or five years off for the youth of the defendant. If the starting point is supposed to be a norm, it has suddenly shifted down just because of age to 10 or 11 years. Then one starts from there, taking into account other aggravating or mitigating factors. That is the sort of explanation that we had from the Minister.
	I believe that behind the interference in the sentencing process in the schedule—and the oddity of guidelines being promulgated by the Government in statutory form before their own Sentencing Guidelines Council comes into operation—is a future excuse for politicians. When a judge passes a sentence that causes an outcry in newspapers, they can say, "Look at our Bill; just have a look at what we said was the starting point. The judge has gone berserk and ignored it!" An excuse is being built in for the Government to explain away decisions that are not attractive to the public—as appears in the tabloid press.
	Since prosecutors today are under the duty to explain to victims and their families why a sentence is passed, why are they not allowed to get on with doing that, while listening to the judge's sentencing remarks? The judge does not simply say, "I pass a life sentence, the tariff is 12 years"—he gives his reasons. Why do we not allow the present system to continue, and throw this political device into the dustbin? I know that there is a certain reluctance on the part of the Front Bench of the official Opposition to go along with throwing the proposal into the dustbin, and I understand their difficulties. But surely, on all sides of the House, we ought to walk into the Content Lobby when the Division is called.

Lord Donaldson of Lymington: My Lords, I support the noble Lord, Lord Thomas of Gresford, in everything that he says, and I shall not repeat it. However, I add one other point. One trouble with primary legislation is that it can never keep up with the times. At the moment—and here I show my bi-partisanship—starting with Michael Howard as Home Secretary and carrying on with the present Home Secretary, we are on a sort of wave of increased custodial sentences. That will not go on; there will be a reversal of the wave, and we will then be hung up on a statutory provision that there is no time to amend. This is not the place for a statutory provision—the Sentencing Guidelines Council is the place for that.

Baroness Kennedy of The Shaws: My Lords, I pick up on the refrain of the noble and learned Lord, Lord Donaldson, that this process has happened in the past decade. We have seen the politicisation of criminal justice and we have seen law and order become an auction. It is the source of regret to me tonight that that auction is displayed by the reticence of those on the Opposition Benches. For fear that the public might see a party in any kind of retreat from parts of the Bill as being soft on crime, people are not standing up to be counted. That is regrettable.
	The noble and learned Lord, Lord Donaldson, said that these things go in waves. My concern is that the wave may ride for a very long time yet. When one has politicised criminal justice and law and order, one ends up having a ratcheting up of sentencing because each party wants to be seen as tougher than the other. I know that there is not an awful lot of space to the right of Mr Blunkett, but I am sure that efforts will be made to find that space.
	I am worried that we shall see not a swing of the pendulum away from heavier and heavier sentencing, but more and more of it. My regret about that policy is that we know that it does not work. When my noble friend on my Front Bench says, "Every time I speak to a member of the public, they tell me that this is what they want", I say to her, to her noble friends on this Front Bench and to those in the other place that the role of Government is to lead. It is not simply to listen to what the public says, especially on sentencing, but to say, "Hold on a minute, let's have more discussion on the subject and see whether it's really what you want". I have said in this House a number of times that what politicians should do is make the political weather. That is not done by polling or soundbites or by going to the public and asking, "How does this go with you?"—because then one hears precisely what is reflected in the Bill. We in these Houses should do better than that.
	I regret considerably that we are going down this road, and I stand with the noble and learned Lord, Lord Ackner, in expressing my concern that we are seeing interference with judicial discretion. As a follow-on from that, we shall see more and more over-crowding in our prisons and more punitive measures. That should be a source of shame to us all, on all sides of the House.

Lord Mayhew of Twysden: My Lords, I should like to ask the Minister to deal with one short question when she replies. She knows very well, of course—we have all been reminded of it over the course of this Bill—that the Attorney-General has a jurisdiction to ask the Court of Appeal to review a sentence if he considers it to be unduly lenient. Let us take a hypothetical case in which a sentence of, say, one or two years has been passed whereas the starting point under the provisions of the Bill would be 15 years. Would it or would it not be open to the Attorney-General to invite the Court of Appeal to take account of and rely on the 15 years as the starting point as evidence that, in an appropriate case, the shorter sentence must have been unduly lenient? If so, then surely it cannot be denied that that would be to impose a fetter on the discretion of the judge.

Lord Carlisle of Bucklow: My Lords, I have already said, and I do not propose to repeat, why I do not like Schedule 19. I listened carefully to what the Minister said when she accepted that this was the replacement of judicial guidelines by statutory guidelines. Of course I accept that any penalties imposed by the court must be within a framework approved by Parliament. To some extent, she might argue that by setting the maximum sentence for any offence, we are clearly establishing those parameters and indicating seriousness. However, my objection to the clause is based on its excessive detail and its content. As has been said, the statutory guidelines provided in the schedule would in effect almost double the length of sentences currently being passed and served. One must ask whether the Government have considered the ratcheting effect of their proposals.
	As I have said, I feel that the proposals are in some way self-contradictory. The schedule provides, for example, that there should be a 30-year starting point, I think, for the murder of a police officer. However, why should that provision deal only with police officers and not also with nurses in hospitals or anyone else? I do not believe that we can put guidelines of this nature into statute although I accept that we can establish a statutory framework within which the courts should work and indicate their own guidelines.
	I ask the Minister to answer one specific question when she replies. In the previous debate, she said that she hoped that, as a result of the Government's actions, confidence which had diminished in the judiciary could be restored. Can she give any examples of how confidence in the penalties imposed in murder cases of recent years have diminished the standing of the judiciary? Is she saying that the stated periods of imprisonment within the mandatory sentences are such that the public have lost their confidence in the judiciary? Is that why the Government are doubling the sentences? I think that we are entitled to know that. I think that we are entitled to know what effect the Government think these types of maxima will have on sentencing policy generally.

Baroness Anelay of St Johns: My Lords, I think that it is right on this significant amendment, moved by the noble and learned Lord, Lord Ackner, that I should give a short resume of why we on these Benches are not able to follow the noble and learned Lord into the Content Lobby. Noble Lords who have been with us through the thick and thin—it has mostly been very thick in content and thin in numbers on this Bill—will appreciate that I have already given a resume on no fewer than seven previous occasions. I shall try not to bore the House once more after this one.
	When we looked at the provisions of Schedule 19 we shared very much the deep concerns of the noble and learned Lord with regard to all the points that he raises. However, we also had to look with care at them because we supported the Government in every respect on the fact that the Home Secretary had to find a proper way of responding to the Anderson judgment. When in government my party always supported the view that, in the old death penalty cases, if I may call them that, it was appropriate for the Home Secretary to have the right to continue the imprisonment of those who had committed those offences. Otherwise, because of the years that they had been assigned, they might be released.
	So when the Government introduced these measures—most of which were brought forward perforce on Report; the Government had no ability to do so in Committee—we had to respond very rapidly. My right honourable and honourable friends in another place had only about 48 hours to respond to these proposals. At that stage, they were prepared to support the Government to a considerable extent while saying that children should not be included within the provisions. However, the more they examined the proposals in detail, the more concerned they became. Consequently, as noble Lords will be aware, at Second Reading I announced that my party had made what I considered to be, and still consider to be, a very bold decision—one that would indeed have enabled the Government to brief the tabloid press that we had gone soft on crime, an allegation that would have been totally false, but one that would have been easy to present.
	We were planning substantially to amend Schedule 19, but to do so as part of a very wide package of changes to these provisions. The package was carefully balanced. It was balanced not only with restrictions on the authority of the Secretary of State, but carefully balanced with a measure—a very small and modest measure, we thought—of parliamentary scrutiny. However, that proposal did not find approval within this House.
	We could not accept part of the loaf. It had to be all of it because the other half was as vital as that which the noble and learned Lord has put forward so eloquently today. Therefore, we cannot accept the noble and learned Lord's amendment either today or, if he brings back similar amendments on this matter, at Third Reading. However, that does not mean that we are content with the avenue down which the Government are taking us and all in this country.

Baroness Scotland of Asthal: My Lords, I have listened to everything that has been said on Report, as I listened with great care to everything that was said in Committee. I do not propose to weary the House with all the explanations and reasons that I have given on what feels to be innumerable occasions in Committee, at Second Reading and now on Report. However, I should like to address some of the specific issues raised.
	I hear what the noble and learned Lord, Lord Ackner, says about this being an extraordinary distortion as a result of a distorted approach. I say without equivocation that I disagree with him. We have previously explained very fully how we planned to respond to the Anderson case and the history that brought us to that point. I shall not repeat that now. I also wish to say as clearly as I can that the noble and learned Lord's comments about my right honourable friend are not well founded. They are also unfortunate. As I know that the noble and learned Lord always expresses himself with judicious and appropriate care, it is always a surprise, if not a pain, to hear him speak with such lack of temperance.
	The reality is that something has to be done to give voice to the fact that Parliament has been enjoined on behalf of the public to decide whether there should be a framework within which the courts should operate when dealing with offences which used to be capital in nature. We no longer have the death penalty but it is right that these offences are still dealt with with the utmost seriousness because of their fatal nature.
	I remind the House that my noble friend Lady Kennedy is indeed a very dear friend to my party. I do not disagree with her when she says that the Government should take a lead on this matter. We are taking a lead in this Bill. The provisions in Schedule 19 are not the only provisions in the Bill. When we isolate this debate we should not expunge from our minds all the other sentencing provisions with which we have laboured during the passage of the Bill: cautioning, sentencing plus, sentencing minus, therapy, treatment, opportunities for early release and continuation of community support so that sentences are real. All of that feeds into the matter that we are discussing. I say with due respect to my noble friend that this is not a matter of shame. I hear what she says in relation to Schedule 19. What we have done in the Bill is to try to bring together a holistic response to sentencing. That should be a matter of some considerable pride as it is an aspiration that has been expressed for a long time and is based on the empirical data that we have. It was endorsed by Auld, Halliday and, before them, by Glidewell. Therefore, it is not something about which we should feel shy.
	The noble and learned Lord, Lord Mayhew, asked about the Attorney-General's ability to review. That remains. The Attorney-General will have to look—as he always looks—to determine whether the court went so outside that which was proper that he should seek to ask the Court of Appeal to interfere with the exercise of a judge's judgment and discretion. Nothing has changed in that regard. What we have, however, is an ability for the judge in passing the sentence to explain with clarity and certainty the basis on which he made that judgment.
	I hear, too, what the noble Lord, Lord Thomas of Gresford, said about judges and the way in which they exercise their discretion. I hope that I have made clear that the best of our judges seek to explain their judgments with clarity and to explain the mitigating and aggravating features that they have taken into account. However, I have to say—we had better not persuade ourselves away from the truth—that that is by no means universal. We want to set a benchmark which says, "This is what every individual can expect". I listened with great care to what the noble Lord, Lord Thomas of Gresford, said. I hope that when he reads his words tomorrow in Hansard, he will not feel a degree of embarrassment at the tone he adopted towards victims and witnesses. Many victims and witnesses have a perfect ability to understand matters. The noble Lord should know—I am glad that he recognises it—that what most people want is a proper and full explanation. They do not always get it. The noble Lord discussed the history of the matter and rightly said that in the past two years practice has changed. It is right that practice will change even further. New rights and new responsibilities will be put in place, and if we get our way on the victims and witnesses strategy, still more will be done. However, what we set out here is a framework, and that is what we have. If we look at the cases—

Lord Thomas of Gresford: My Lords, before the noble Baroness moves on—

Baroness Scotland of Asthal: My Lords, this is Report. I believe that I have been amazingly tolerant but even I come to a stage when I think that I, too, must have the courtesy shown to me which is the entitlement of a person who responds on behalf of the Government on Report. I say that with the greatest respect—

Lord Thomas of Gresford: My Lords, if the noble Baroness criticises me, surely I am entitled to respond.

Baroness Scotland of Asthal: My Lords, the noble Lord is entitled to ask a question. He has asked a question and I have sought to respond. I say with the greatest degree of respect to the noble Lord that it is now my opportunity on Report to respond with propriety. I hope that I shall do so, and do so with courtesy.
	Much has been said about differences in the way in which these matters are approached. Reference was made to a great disparity, a 50 per cent difference and a ratcheting up. However, that is not what the figures show. We believe that 70 per cent of the cases will fall within the 15-year band. That compares with the 12 years suggested by the Lord Chief Justice. In those cases it would not be right to suggest that there is a 50 per cent increase. The 15 and 16 years for aggravated cases we think should apply to 30 per cent or less. Generally our 30-year starting point, or whole life starting point, is for the most serious cases. It was said that substantial upward adjustment to 20 or 30 years is sometimes called for. I have said previously why we disagree with that view.
	The noble Lord, Lord Carlisle of Bucklow, suggested that the discretion of the judge may be diminished by virtue of this schedule. We do not believe that to be the case. The framework is set. I have referred previously to the benefit that I believe is to be drawn from paragraphs 7 and 8. I hear what the noble Baroness, Lady Anelay, said about the reason for her party's view. I hope that the true reason is that in reality what we have now is a fair framework. These proposals are rational and appropriate. They are a very carefully deliberated response to the House of Lords judgment in the case of Anderson which held that the tariff decision should be made by an independent tribunal. The Government are fully committed to ensuring that the law is compatible with the rights protected in the ECHR. The Government are also fully committed to the continuation of a strong element of democratic accountability in arrangements for sentences of murderers and have brought forward amendments to give effect to that.
	Times change but the whole point of the framework is that it sets the starting point and sets out the aggravating and mitigating features so that the flexibility we would expect is available. The noble Lord asked about public confidence in the criminal justice system generally. When I say that generally it is low that is because the indicators and the research that we have demonstrate that that is the case. It is curious that even in those areas where the rate of successful interdiction, arrest and bringing to justice of offenders has gone up, that has not been mirrored in a consequent increase in confidence. We are now seeking to establish why that is so.
	One of the things that the framework will achieve is to enable people to understand with greater clarity why decisions are made. It will give us—if I can put it colloquially—the same hymn sheet from which we can all sing in whatever part of the country we happen to be, and the regional variations which are currently not explicable can be better understood and better explained.
	We believe that the schedule is an appropriate response to Anderson and that it is well founded. I invite the noble and learned Lord, Lord Ackner, to do what he originally said that he was minded to do; that is, to invite everyone to go through the Not-Content Lobby. I believe that he was right in that, albeit I understand the advice that was given to him, which was only proper.

Lord Ackner: My Lords, I have three brief points to make. First, in response to the criticism levelled against me for my comments on the Home Secretary, I am satisfied that I adhered to the tradition of this House to speak with moderation. I remind the noble Baroness of our recent debate that was devoted almost entirely to his comments, and how no noble Lord spoke in his favour, with the slight exception of the noble Lord, Lord Borrie.
	Secondly, the noble Baroness has in no way answered the point that was made by the Liberal Democrats, the Official Opposition and by me: why was the matter not left to the Sentencing Guidelines Council? It was set up, and before it had a chance to act, it was pre-empted with that vast increase.
	Finally, the noble Baroness referred to no consultation with anyone, neither the judiciary nor anyone else, before the schedule was produced. That was a conditioned reflex resulting from the Anderson case and the immigration case. I wish to test the views of the House.

On Question, Whether the said amendment (No. 227) shall be agreed to?
	Their Lordships divided: Contents, 64; Not-Contents, 104.

Resolved in the negative, and amendment disagreed to accordingly.

Baroness Blatch: moved Amendment No. 228:
	Before Clause 256, insert the following new clause—
	"DISQUALIFICATION FROM WORKING WITH CHILDREN
	(1) The following is inserted after section 29 of the Criminal Justice and Court Services Act 2000 (c. 43) (disqualification from working with children: juveniles)—
	"29A DISQUALIFICATION FROM WORKING WITH CHILDEN WHERE QUALIFYING SENTENCE OR RELEVANT ORDER NOT IMPOSED
	(1) This section applies where—
	(a) an individual aged 18 or over is convicted of an offence against a child, and
	(b) neither a qualifying sentence nor a relevant order is imposed by a senior court in respect of the conviction.
	(2) If a senior court is satisfied, having regard to all the circumstances, that it is likely that the individual will commit a further offence against a child, it must order the individual to be disqualified from working with children.
	(3) If a senior court makes an order under this section, it must state its reasons for doing so and cause those reasons to be included in the record of the proceedings."
	(2) In section 30 of the Criminal Justice and Court Services Act 2000 (c. 43) (sections 28 and 29: supplemental) after the words "sections 28 and 29" there is inserted ", 29A".
	(3) In section 33 of the Criminal Justice and Court Services Act 2000 (c. 43) (conditions for application under section 32) after subsection (2) there is inserted—
	"(2A) In relation to a disqualification order made under section 29A, as if the order were a sentence passed on him for the offence of which he has been convicted.""

Baroness Blatch: My Lords, in moving Amendment No. 228, I shall speak also to Amendment No. 229. Amendment No. 228 returns to a matter of great importance; namely, the orders introduced by the Criminal Justice and Court Services Act 2000, which disqualify from working with children those people who have committed sexual or violent crimes against children or who have dealt class A drugs to children. I raised that issue in Committee at col. 891 of the Official Report of 14th October. The amendment seeks to address points raised by the Government on that occasion.
	At present, offenders can be given disqualification orders only if they commit one of the relevant offences set out in the 2000 Act and are sentenced to 12 months' imprisonment or more. In Committee, I raised the issue of those who commit offences against children but do not receive a 12-month sentence. One hears daily of offenders who receive very short prison terms or even community sentences for very serious offences against children—in particular, for child pornography offences. Such people are clearly unsuitable ever to work with children but, under the law as it stands, there is no means by which they can be given a disqualification order.
	In Committee, the Minister resisted my amendments on the ground that automatic disqualification for all sex offenders, or all those sentenced to imprisonment for fewer than 12 months, might include some cases where disqualification might be inappropriate; in particular, minor child-on-child cases—a point made by the noble Baroness, Lady Walmsley. I recognise that the Minister's point has some force. The amendment would not make it mandatory for disqualification orders to be imposed in all such cases; it would require disqualification only where the court considered it likely that an offender would commit further offences against children.
	Therefore, as the noble Baroness, Lady Walmsley, said in Committee, the amendment focused on,
	"the propensity of the people concerned".—[Official Report, 14/10/03; col. 894.]
	I hope that the Minister will accept the revised amendment, which would provide additional protection to children from those offenders who are clearly a potential danger but who, for whatever reason, receive relatively light custodial sentences or even community sentences, possibly as a result of a guilty plea.
	I ought to remind the House that I proposed a similar amendment to the Criminal Justice and Court Services Bill on 4th October 2000, which was rejected by the noble Lord, Lord Bassam, speaking for the Government. He said,
	"this is an issue which we may wish to revisit at a later stage, perhaps when we see the scheme and system properly kick in".—[Official Report, 4/10/00; col. 1531.]
	I hope that the noble Baroness will not simply repeat the arguments put forward three years ago by the noble Lord, Lord Bassam, which were formulated prior to the introduction of the scheme. His case included the curious argument that such an amendment would,
	"serve only to dilute and weaken the scheme".—[Official Report, 4/10/00; col. 1529.]
	I continue to believe that my amendment would strengthen the scheme. The Government promised three years ago that they would revisit the point in the light of the scheme's operation. Again, I hope that the Minister will say that there has been a change of mind on the Government Front Bench.
	I should also like the noble Baroness to clarify for the record some of her responses in Committee. In Committee, I referred to the comments made last month in the Court of Appeal by Lord Justice Kay about trial judges failing to impose disqualification orders on offenders on whom such orders are required to be imposed by the 2000 Act. Those comments were made during the course of argument in the Court of Appeal. I have had the opportunity to read the judgment, given on Wednesday 15th October just a few hours after I had made my speech in Committee.
	The case concerned was that of Michael Wheeler, the paedophile who groomed two young girls over the Internet. He deliberately waited until very soon after they had turned 13 years old before engaging in sexual intercourse with them. The result was that the maximum sentence for each act of unlawful sexual intercourse was two years rather than life imprisonment. Noble Lords may recall that both the trial and the appeal were the subject of much comment in the press. At the conclusion of the Court of Appeal's judgment, Lord Justice Kay said:
	"The judge's order requiring registration under the Sex Offenders Act remains unaltered. In addition there was a requirement on the judge to disqualify the offender from working with children pursuant to section 28 of the Criminal Justice and Court Services Act 2000. That order was mandatory unless the judge concluded that it was unlikely that the offender would commit any further offence against a child. Where a judge reaches such a conclusion he is bound to explain his reasons. The judge in this case made no such order and gave no explanation for not doing so. We must, therefore, consider the matter ourselves. It is wholly impossible to conclude in the circumstances of this case that the offender will not commit a further offence against children. There is a clear risk that it may happen. Accordingly we are obliged to, and do, make such an order under section 28".
	If a disqualification order is not imposed by a trial judge in such a serious and high-profile case as this, where it is manifestly obvious that it should have been, how many other offenders during the past three years have escaped without the ban on working with children being imposed when it should have been? Had the noble and learned Lord the Attorney-General not sought to appeal the length of prison sentence passed on Wheeler, a disqualification order would never have been imposed. As I understand it, the issue of whether a disqualification order ought to have been imposed in Wheeler's case was raised not by counsel for the noble and learned Lord but by the Court of Appeal.
	Will the Minister indicate what has come of the inquiries that she and her noble and learned friend have made into those maters and whether there are cases in which disqualification orders have not been imposed due to an error in the Crown Court? I would particularly appreciate clarification from the noble Baroness about the case of the paedophile, Sadowski, which I raised in Committee.
	In Committee, I asked the Minister whether it would be possible to impose disqualification orders on those offenders who should have been disqualified but were not due to such errors as obviously occurred in the case of Wheeler. The noble Baroness said:
	"I said that I believed we had received a very recent ruling that would allow the retrospective application of this procedure. I have not yet looked at the ruling myself. The number of cases will still be limited. I would quite like to see the authority myself to verify that it does what we hope it will do. I shall write to the noble Baroness to clarify the matter. I believe that I can reassure her that we can seek to put it right".—[Official Report, 14/10/03; col. 902.]
	I have not had an indication of what that investigation found.
	I believe that the noble Baroness may have been referring to the case of R v Field, a decision of the Court of Appeal given on 12th December last year and reported in Volume 1 of the Weekly Law Reports of 2003 on page 882. That ruling was concerned not with the imposition of disqualification orders on those offenders who were erroneously not sentenced to them in the first place but with whether the orders could be imposed on those convicted after the commencement date of offences committed before commencement. That was the point about retrospective application with which the court was dealing. The court held that they could be imposed in such cases.
	However, that judgment does not address the point I was seeking to make in Committee, which is whether we can now impose the orders on those offenders who have escaped them during the past three years since the 2000 Act came into force, as Wheeler did, because of errors in the trial process. Can the noble Baroness say what the outcome of the Government's reflection on that point has been since the Committee stage?
	Can the noble Baroness also put on the record the Government's position regarding disqualification orders being imposed by magistrates' courts? Clause 136 increases magistrates' sentencing powers to allow them to impose a sentence of 12 months' imprisonment. In cases of offences against children, such offenders would have to be sentenced to disqualification orders if they were sentenced by the Crown Court, but magistrates' courts have no powers to impose disqualification orders as the law stands.
	The Minister said in Committee,
	"we believe that it would be proper to leave the balance where it is. Given the very serious nature of the disqualification order and its lifelong consequences, we consider it more appropriate to continue to restrict its use to the Crown Court".—[Official Report, 14/10/03; col. GC 898.]
	I believe that that is an unfortunate conclusion to arrive at, as it creates a potential lacuna. Someone sentenced to 12 months by the magistrates' court for an offence against a child cannot be disqualified from working with children, but someone receiving the same sentence for the same offence in the Crown Court could be disqualified.
	When I pressed the point, the Minister then said:
	"When dealing with this sort of application—we are talking about a lifelong ban—the appropriate level of judicial office to impose that ban will be the Crown Court. In due course it may be deemed appropriate for those cases to be transferred to the Crown Court to be dealt with there".—[Official Report, 14/10/03; col. GC 902.]
	I thought this Bill was about making more rational the judicial system and making it possible that where the court has the increased power to award a sentence of up to 12 months, it would be able to apply a disqualification order in appropriate cases. Can the Minister or the noble and learned Lord the Attorney-General give the House an assurance from the Dispatch Box that, in all cases of offences against children tried in the magistrates' courts, the magistrates will be reminded by the Crown Prosecution Service that, if there is any question of a 12-month sentence being passed, they ought to commit the case to the Crown Court for sentence so that a disqualification order can be imposed?
	The Government rejected my amendment in Committee. It would have provided a legislative solution to this problem, and it is important that some sort of solution, even an administrative one, is put in place to close that loophole. I invite the Government to give that assurance now, based on the Minister's remarks in Committee that I have just quoted.
	I believe that this amendment is clearly needed to address a lacuna in the existing legislation. I also hope that the Minister will be able to provide a very full assurance to the House on the other points I have raised and to set out what action the Government propose to take to rectify the problems that have come to light.
	Amendment No. 229, which also stands in my name, raises a point that occurred to me when I read the recent judgment of the Court of Appeal in the case of Michael Wheeler. He was sentenced to a number of consecutive sentences of imprisonment for several offences. Section 28 of the Criminal Justice and Court Services Act 2000 states that an individual convicted of an offence against a child must be disqualified from working with children if,
	"a qualifying sentence is imposed by a senior court in respect of the conviction".
	In practice, that means if a sentence of 12 months or more is imposed by the Crown Court.
	My Amendment No. 229 raises the issue of consecutive sentences. Let us suppose that an offender is sentenced at the Crown Court to 18 months for three offences against children, but the 18-month sentence is made up of three consecutive six-month sentences or even two consecutive nine-month sentences. Would such an offender be liable to be disqualified from working with children because of that technicality? The sentence imposed in respect of each conviction is less than 12 months, although the overall sentence is substantially more.
	When I looked at Section 28 of the 2000 Act, my initial reaction was that it stated that the 12-month sentence had to be imposed in respect of at least one individual conviction. In that case, a person given an overall sentence of 12 months or more, made up of consecutive sentences shorter than 12 months, would not be covered. If that is the case, it is clearly wrong, and the legislation needs to be corrected.
	I hope that the Minister will be able to clarify the position when she comes to the Dispatch Box. Unless these concerns are addressed, either by accepting my amendments or by promising that they will be dealt with in full at Third Reading, I give notice that I shall return to these important matters. I beg to move.

Baroness Anelay of St Johns: My Lords, I fully support all that my noble friend has said. I look forward to hearing my noble friend Lady O'Cathain speaking in support of these amendments.

Baroness O'Cathain: My Lords, I obviously support my noble friend on these amendments. I am convinced that the amount of research that she has done, the feeling and the sheer care that she has put into a really appalling situation which has been allowed to develop justifies anybody's support.
	We believe and hope that the Minister is sympathetic towards these amendments—to the principle contained in them and the content, if not the actual wording. If they are not perfectly worded, perhaps she will give an indication that she will take them away and the Government will give us a steer on how to continue.

Lord Renton: My Lords, Parliament has a major duty to protect children from the activities of paedophiles. My noble friend Lady Blatch, with her usual persuasive ability, has put forward what I suggest is an unanswerable case in her amendments. She has made it clear that her amendment would allow no discretion on the part of the court. It says that a senior court must order the individual to be disqualified from working with children. Those are very strong and, in my opinion, unanswerable terms. Moreover, proposed subsection (3) states,
	"If a senior court makes an order . . . it must state its reasons for doing so and cause those reasons to be included in the record of the proceedings".
	I hope that the Minister will agree that there is no answer to the case which my noble friend Lady Blatch has put forward. If it is a matter of drafting, by all means let the Government put forward better drafting at Third Reading. But we really cannot ignore the case that my noble friend has made.

Baroness Walmsley: My Lords, as the noble Baroness, Lady Blatch, has reminded us, when we debated this matter in Committee, I was supportive of what she was trying to do. There clearly is a gap in the provision for protecting children in this respect.
	At that time, as the noble Baroness reminded us again, I hoped that something could be brought forward which focused on the propensity to reoffend against children and that children would be protected by a new provision. The amendment is a very good attempt to solve the problems identified on that occasion. Even if it is not exactly perfect, I hope that the Minister will be able to reassure us that she will address the matter at Third Reading.

Baroness Scotland of Asthal: My Lords, I thank the noble Baroness, Lady Blatch, and join the noble Baroness, Lady O'Cathain, in congratulating her on her ongoing commitment in this very important area. I also thank the noble Baroness, Lady Blatch, for initiating a further debate in this House on disqualification of unsuitable people from working with children. Similarly informative debates have taken place on the matter in the context of the Sexual Offences Bill in another place. I hope that I will be able to give her sufficient comfort for her to be content that we are responding appropriately. However, I will not be able to answer all the points that she raised.
	Amendment No. 228 would widen the scope of Part 2 of the Criminal Justice and Court Services Act 2000, to give courts the power to disqualify from working with children those offenders whose sentence did not meet the qualifying sentence threshold set out in Section 30 of that Act. Broadly speaking, the current sentence threshold in the provisions is 12 months or more of imprisonment or detention, or a guardianship or hospital order within the meaning of the Mental Health Act 1983.
	The proposed new clause in the amendment provides for the courts, if satisfied that the individual will commit a further offence against a child, to make an order disqualifying him from working with children. They must state their reasons for making such an order and cause those reasons to be recorded in the record of proceedings. I am not absolutely clear whether the noble Baroness intends that the effect of the amendment will be that a court must consider a discretionary disqualification order every time that it sentences for a relevant offence. If so, that would be a little burdensome for the courts. However, I share her concern that underlies the amendment; namely, that the courts should be able to disqualify from work with children all those who have offended sexually or violently against children and pose a continuing risk to them. That is what she is getting at.
	I wrote to noble Lords, including the noble Baroness, last week outlining our initial thinking. I am sorry if she did not get that response. I have a copy in my briefing, and the letter was written to the noble Baroness, Lady Anelay, and copied to the noble Baronesses, Lady Blatch, Lady Walmsley and Lady O'Cathain, and the noble Earl, Lord Russell. I hope that the others got their copies. I apologise to the noble Baroness if, for some reason, the letter has not got to her, although I think that the noble Baronesses, Lady Anelay and Lady Walmsley, have theirs. We set out in that letter what we found. A copy has been put in the Library, but I am quite happy to deal with the issue.
	The Government will seek to table a relevant government amendment at Third Reading that will address the issue raised by Amendment No. 228. The draft is not to hand now, or I would obviously have been more than happy to share it with the noble Baroness. We would like to leave the existing quasi-automatic scheme for disqualification orders untouched but to consider adding a discretionary extra tier to the scheme, which courts might use in cases where the qualifying sentence threshold was not met. I think that that goes to the mischief that the noble Baroness has identified. I hope that she can be content to wait to see that provision before making a decision.
	The noble Baroness raised an issue about the difference between the ability of the magistrates' courts and the Crown Court to deal with the matters. We will work to ensure that the guidance on allocation of courts issued by the Sentencing Guidelines Council advises that cases in which a disqualification order is likely to be made should be allocated to the Crown Court. However, if the magistrates' court dealt with a relevant case and unexpectedly found a disqualification order necessary, it should be able to commit it to the Crown Court under the dangerousness provisions in the Bill. We hope that we will be able to catch that.
	I listened with care to what the noble Baroness said about finding an alternative administrative route to make sure that a safety net was there, and that may be the sort of safety net that she would wish to see and we would be happy to try to supply. The Sentencing Guidelines Council is independent, of course, but we will certainly raise the issues, as I am sure will others, to invite better consideration of them.
	I also listened with concern to what the noble Baroness said about whether the issues were being raised by prosecutors when dealing with such cases, so that we could apprise the court. The court is sure that that should be done. I am most grateful to my noble and learned friend the Attorney-General, who sits beside me on the Front Bench today, for his affirmation for what is contained in my brief, which is that Crown Prosecution Service prosecutors have been reminded to remind the court of that power. He has reinforced that message himself, because he sees the matter as important, as does the noble Baroness, Lady Blatch.
	Amendment No. 229 introduces a provision whereby an offender who meets the qualifying sentence threshold by virtue only of two or more consecutive sentences for relevant offences can be disqualified, in the same way as an offender who gets a qualifying sentence following a single conviction. The noble Baroness told us how she thinks that that would operate. The effect of the amendment might conversely be that, for example, an 18 year-old convicted of three minor charges of assault, including a brawl with a 15 year-old of similar stature, and sentenced to four months' imprisonment for each assault to run consecutively, would be brought within the quasi-automatic provisions for disqualification for life from working with children.
	From our previous debate, I know that that is not what the noble Baroness intends; nor is it what the noble Baroness, Lady Walmsley, or any of us would want. I remain unconvinced that, by itself, the amendment is a proportionate response, but add that the amendment that we hope to introduce at Third Reading would remove the need for Amendment No. 229 in cases where the court believed that there was a continuing risk to children. In those circumstances, the court would be able to take effect of the second limb that we seek to introduce in the new amendment, which would enable it to give that safety provision to children in such circumstances. With that reassurance, I hope that the noble Baroness will also feel content.
	The question of whether disqualification orders can be made retrospectively was raised on the previous occasion, and the noble Baroness amplified it tonight. I want to clarify that the orders can be made with respect to behaviour that pre-dated the coming into force of the relevant provisions in the Criminal Justice and Court Services Act 2000. However, the orders can be made only at the time of sentencing of the offender; they cannot be made later.
	I appreciate the concerns that were raised by the noble Baroness—they were also raised in another place—about the apparent failure of the courts in certain cases to issue disqualification orders in cases where the qualifying criteria appeared to be met. It would be inappropriate to comment on specific cases without the full facts in front of me, but I share the concerns of the House, as expressed by the noble Baroness, that those orders must be made in cases that meet the qualifying criteria. I am urgently considering what further action can be taken to deal with any cases in which it appears that a court may have omitted to consider the making of a disqualification order. There may be considerable difficulties, but we are giving urgent thought to how we can respond to that problem.
	In the mean time, to ensure that orders are made in appropriate cases, we have raised the issue with the Crown Prosecution Service and the Judicial Studies Board. They have undertaken to remind prosecutors and sentencers of the disqualification provisions. We will also be considering how best to undertake a review of the operation of the disqualification provisions. I hope that those undertakings will go some way to reassure the House that we take the issue very seriously and that we are trying to ensure that disqualification orders will be made in every relevant case.
	The noble Baroness asked specifically about the case of Luke Sadowski. Since she raised the matter, we have made enquiries and are still looking into the case, but the points that I have made address the general issue of the possibility that a court may not make an order in a relevant case.
	I have not been able to obtain the kind of detail that would enable me to make a proper response to the noble Baroness, but we will continue to seek it. If and when I find such an explanation, I shall certainly share it with noble Baronesses opposite and with the noble Baroness, Lady Walmsley. I hope that the noble Baroness, Lady Anelay, will forgive me if I write directly to the noble Baroness, Lady Blatch, on this occasion and copy the letter to other noble Lords who have participated in the debate. I hope the noble Baroness will not consider me discourteous for not doing it the other way round, but it may ensure that the noble Baroness receives the letter that she deserves.

Baroness Blatch: My Lords, I am grateful to the Minister for that full answer. I do not hold her personally responsible for my not having received a copy of the letter. I am certain that my noble friend, Lady Anelay, would have discussed the letter with me if she had not taken it for granted that I had received my copy. It is not the first letter in recent weeks that I knew would arrive two or three weeks late, so there are no hard feelings over that.
	I hope that the noble Baroness will understand it if I reserve my position until I have seen the amendment, because the terms of the amendment will be important. I understand the Minister's comments on the sentencing guidelines on allocation of court. Since the Bill is about streamlining the service and making it faster and more flexible, it is a great pity that if, for example, the allocation of court were wrong, and the case went to the magistrates' court rather than to the Crown Court, and a 12-month sentence were given, there is not a facility for that sentence to be awarded in that court rather it having then to be referred up to the Crown Court. Again, I will await to hear the detail of any remarks that the Minister makes at Third Reading.
	It is deeply distressing that the automatic system is not working. There is now a complete lack of trust. It is extraordinary that reminders have to go out. The Act of Parliament reached the statute book in 2000 and it is only by my tabling the amendments that we have discovered—as the Government clearly have not—that the system is not working. Serious offenders have been found guilty in court, have been sentenced and have walked away without the disqualification order. They are therefore fully free, during the course of their lives and maybe on reform, to go and work with children. That is simply not acceptable. To say that they have been reminded and that the Attorney-General has reinforced that reminder is simply not good enough.
	Whatever else we do at Third Reading, we must remedy a situation where the court has failed to apply a disqualification order from working with children in an appropriate case. If it is a matter merely of the judge forgetting, there must be a remedy that can be retrospectively applied. Otherwise, serious offenders, who in the court's judgment have a propensity to offend again, will be allowed to work with children again. I hope that the noble Baroness will come forward with an amendment that will do that.
	I shall comment finally on the Sadowski case. I am deeply disappointed that in spite of all the back-up that the Home Office supplies, and I know well of it, it could not have found out between Committee and Report whether Luke Sadowski received a disqualification order and whether it was appropriate in the case. If he did not, why not? I am sure that I would be able to find out that information in a morning. I accept that the noble Baroness still does not have that information and that she will try to get it for me, but it will nevertheless be deeply distressing if we discover that a man like Sadowski, who deserves a disqualification order, does not have one simply because the court failed to apply it.
	As I have said, I reserve my judgment for Third Reading. I will look carefully at the amendments tabled by the Minister, but I hope that she will take on board the extra points to which I have referred and in particular my proposal for some remedy in law for the courts' having failed to apply a disqualification order. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 229 not moved.]
	Schedule 22 [Drug treatment and testing requirement in action plan order or supervision order]:

Baroness Walmsley: moved Amendment No. 230:
	Page 301, line 8, at end insert—
	"(c) that his dependency upon, or propensity to misuse, drugs is related to his offending behaviour, such that it is relevant and proportionate for the court to require treatment, and
	(d) that the option of voluntary treatment provided concurrent to the order would be unsatisfactory."

Baroness Walmsley: My Lords, in speaking to Amendment No. 230, I shall speak also to Amendment No. 233. It is the first of three groups of amendments to Schedule 22.
	I return to the amendments to Schedule 22 to ensure that the powers to attach drug treatment and testing requirements to action plan and supervision orders would be used by the courts only if alternatives of voluntary treatment had been considered and rejected as unsatisfactory. That would build in safeguards to ensure a more appropriate and proportionate response to young people who use drugs.
	I am concerned in principle at the prospect of children being compelled, on pain of the criminal offence of breaching a court order, to undergo treatment, even though they might benefit from it. The voluntary route is by far the best. The amendment would ensure that the serious step of using court compulsion to treatment would be taken only where absolutely necessary, and where voluntary options had already been considered and tried.
	The Government have already shown a commitment to interventions that are relevant and proportionate. For example, in Committee in the Commons, the Minister stated:
	"the court would include a treatment requirement in the orders if it was satisfied that that would be relevant and proportionate intervention. That test is very important".
	It is surely therefore vital and valid to incorporate such an important test into the legislation that provides for those powers.
	Similarly, in relation to voluntary treatment, the Minister in another place stated:
	"It is open to any misuser of drugs—anyone with a problem—to seek voluntary treatment at any time".—[Official Report, Commons Standing Committee B, 11/2/03; col. 976.]
	While that statement is perhaps generally true of adult drug users, I must question whether it can fairly be said that every child aged 10 and over has the kind of knowledge and confidence to access a young person's treatment service of the kind that the statement would imply.
	I am grateful to the noble and learned Lord the Attorney-General for his recent letter about the increase in resources for drug treatment. While growth in young people's community treatment services has recently been rapid, there are in many areas still few new services and they are often unknown to young people in the area. This is perhaps even more true for those young people who have become disengaged and have started to get into trouble.
	As the provider of young people's drug treatment, the Children's Society, which has briefed me, knows that for many children who get involved in offending and drug use their involvement with the youth offending team's drug specialist will be the first time they have become aware of the availability of youth-centred drug services. As a matter of course and good practice, the society believes that the possibility of voluntary treatment should be pro-actively encouraged by both YoT agencies and the court and considered to be the preferred option before the necessity for court compulsion can be shown.
	I had the pleasure of an interesting briefing by the National Treatment Agency yesterday afternoon and it is clear that a great deal of progress is being made. However, it had to admit that there is still a long way to go in providing drug treatment programmes that are relevant and appropriate to young people. It also accepted that there are serious challenges in ensuring that these services are well known to and can be easily accessed by young people. In the light of that, I believe that there is a need for the additional safeguards of these amendments. I beg to move.

Lord Hylton: My Lords, at earlier stages of the Bill I supported the voluntary principle as set out in the noble Baroness's amendment. I am happy to do so again and I am convinced that if it can be applied it will lead to more satisfactory and effective treatment.

Lord Bassam of Brighton: My Lords, Amendments Nos. 230 and 233 would additionally require the court to be satisfied that the offender's dependency on or propensity to misuse drugs is related to his offending behaviour and that the option of voluntary treatment is considered unsatisfactory. In the past, the noble Baroness, Lady Walmsley, has suggested that the provisions of the schedule are disproportionate and that a programme of treatment should be imposed only when it is quite clear that there is a definite and problematic habit which is linked to the offence.
	We want to take every opportunity to identify and address, as early as possible, dependency on or propensity to misuse drugs, so as to minimise the chances of a young drug user entering a continuing cycle of drug misuse and offending. We believe this to be important regardless of whether or not that dependency or propensity is directly related to the particular offence or offences for which the community order is being imposed.
	We all accept that there is a strong correlation between drug misuse and offending among young people. We also know that drug misuse is a serious problem which, if left unchecked, can blight young people's lives and lead to a cycle of drug misuse and repeat offending. The aim of the treatment requirement is to reduce and, if possible, eliminate the young offender's dependency on or propensity to misuse drugs.
	Under these provisions, the offender's dependency or propensity has to be such as requires and may be susceptible to treatment. It is likely, therefore, to be an underlying problem which has contributed to the offence for which an order is being imposed. However, not all drug users go on to commit crimes specifically related to their offence. We therefore consider that it would be over restrictive to put such a condition, as proposed in these amendments, on the face of the Bill. For those reasons, therefore, we intend to resist this part of Amendments Nos. 230 and 233.
	The schedule ensures that the courts can include a treatment requirement in these orders only if it has been recommended as suitable for the offender by an officer of a local probation board or a member of a youth offending team. Such a recommendation should be made only if the requirement is relevant—I repeat, relevant—to the offender. Clearly, a court will take relevance and proportionality into account in deciding whether to include a treatment requirement in each case.
	The inclusion of paragraph (d) in Amendments Nos. 230 and 233 would make it a condition that the court must be satisfied that voluntary treatment concurrent with an order would be unsatisfactory.
	Views have been expressed which reflect the concerns of the Children's Society and other organisations about the coercive nature of including a treatment requirement as part of a court order for young people. We understand that their preferred option would be voluntary treatment rather than treatment under the requirement of an order.
	However, it is not the case, as has been suggested, that children are being compelled on pain of breaching a court order to undergo the treatment they need. The clause ensures that the court may include a treatment requirement in these orders only if offenders who are 14 or over consent to its inclusion. As I have said, the requirement as to treatment must also have been recommended to the court as suitable and therefore appropriate for that offender.
	We agree that treatment is more likely to be effective and successful with the active compliance of the individual concerned. If an offender is already undergoing treatment or is committed to undergoing a treatment programme, this would be taken into account by the supervising officer when considering whether to recommend including a treatment requirement in an order. We anticipate that these provisions will be used primarily for problematic drug-misusing offenders who lead a generally agreed chaotic lifestyle. These individuals would benefit from a more structured, integral programme.
	The purpose of this schedule is to provide for treatment to be included as a component of an order so that the offender's drug misuse can be addressed as an integral part of the order. We know that young drug-misusing offenders are likely to have complex problems which require integrated approaches. If treatment were to be undertaken under separate arrangements, the real benefits of this integral approach could be lost. Moreover, there could be less incentive for the offender to remain in a treatment programme. Were an offender to drop out of such separate "voluntary" treatment, there would be no way for the court to ensure that his drug-using behaviour was effectively addressed.
	If an offender who has consented to the inclusion of a treatment requirement, as part of an action plan or supervision order, then failed to participate in the treatment programme, or withdrew his consent, this could be taken into account in deciding how best to deal with that offender. Decisions would be taken in the context of a continuing aim to help him address his drug-using behaviour.
	We know that young people undergoing drug treatment often lead the chaotic lifestyle to which I have referred and that despite the best efforts of everyone involved there could well be breaches of the drug requirements. We want to help young people with these drug problems and there will certainly not be a "one breach and you are out" policy.
	Multi-agency youth offending teams and specialist drug workers who support them are well used to working with young people with multiple problems, including drug misuse, and will help support and encourage them. In addition, guidance to the courts and youth offending teams will make it clear that breach action should be undertaken only as a last resort.
	I hope that having heard more background and a description on how we see the provision working, the noble Baroness will feel able to withdraw her amendment.

Baroness Walmsley: My Lords, I thank the Minister for his response. I confess to agreeing with many of the words he uttered and I pay tribute to the Government's intention and objective of helping young people. The difference between us boils down to the fact that I and the children's organisations do not believe that the compulsion element will achieve what is required. Furthermore, we are concerned about the ratcheting up element of the potential for breaching a court order. However, I do not intend to press the amendment on this occasion and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Baroness Walmsley: moved Amendment No. 231:
	Page 301, line 36, leave out "consents to its inclusion" and insert "has indicated his willingness to comply, and the appropriate consent to inclusion of the requirement has been given"

Baroness Walmsley: My Lords, in moving Amendment No. 231 I shall speak also to Amendment No. 234. Their purpose is to ensure that prior to the attachment of requirement of drug treatment to a supervision and action plan order, the court has regard to the child's understanding of and willingness to comply with a programme of treatment. The treatment requirements within Schedule 22 could, as they currently stand, be included in an order for any person aged 10 or over. The proviso that the court shall be satisfied that the young person's consent has been obtained if he is 14 or over implies, first, that any child over 14 would automatically be competent to consent on his own to the inclusion of a requirement; and, secondly, that it would not be equally important for the court to establish the views and willingness of a young person under the age of 14 to comply with the requirement.
	Both those implications of the current drafting are problematic, and they support the need for the amendments, which would separate and clarify the difference. Our aim would be to ensure that each child who is assessed for such an order has had the opportunity to express his view and intentions in relation to the prospect of treatment, whether or not it is the child or his parents who will need to give express consent to the inclusion of the requirement in the order.
	The Government's stated intention in introducing these requirements is to provide helping treatment that will engage the young person in behaviour change. The principle behind my decision to return to this matter on Report is that I believe it is important that the engagement is there from the outset. I am sure that that is the correct approach. I believe it is also the Government's approach in many ways.
	Therefore, I cannot see any logical reason for legislating in this way only for those aged 14 and over, should such an engagement be necessary. In fact, the younger the person involved, surely the more important it is for the court to know whether he is being subjected to a process which he does not understand or with which he has no desire or intention to comply. I beg to move.

Lord Hylton: My Lords, when the noble Lord comes to reply, can he say whether the Government wish to see parents agreeing to this kind of order and treatment? I believe that that would greatly reinforce their effectiveness in the 14-to-18 age group and would do so even more if such orders applied to children under the age of 14.

Lord Bassam of Brighton: My Lords, the schedule does not allow the court to include a treatment requirement in either order unless, among other things, the individual, if aged 14 or over, consents specifically to its inclusion. Amendments Nos. 231 and 234 would require offenders aged 14 or over to indicate a "willingness to comply" with the requirement and would also require that "appropriate consent" be given to its inclusion in the order. The schedule already requires the consent of those aged 14 and above to the inclusion of a requirement in the order.
	With regard to a "willingness to comply", as has already been mentioned, the court cannot include a treatment requirement unless it has been recommended as suitable for the offender by an officer of a local probation board or a member of a youth offending team. Before making such a recommendation, the probation officer or youth offending team member must take into account the willingness of the offender to comply with the order.
	I turn to the need for "appropriate consent" to inclusion of the requirement—that is, consent both to the inclusion of a requirement as to treatment, and testing where applicable, and consent to the treatment itself. That will have to be given in accordance with the Fraser guidelines and the principle of Gillick competence. That will be confirmed in guidance to the courts and to professionals, who will be responsible for the implementation of the provisions.
	We do not mean to imply, as has been suggested, that all those aged 14 and over will be competent to give their consent, nor that those under the age of 14 will not be competent. We shall make clear in guidance that the courts should have regard to the consent of an individual, and his parents or guardians where appropriate, whatever the offender's age.
	Having said that, we continue to believe that it is right to require the implicit consent of those aged 14 and over to the inclusion of a treatment requirement. We believe that young people should be engaged in that decision. With that engagement from the start, successful participation in a treatment programme can surely only be more likely, as the noble Baroness, Lady Walmsley, suggested.
	I do not believe that there is a great deal between us on this issue. I hope that what I have said offers the noble Baroness, Lady Walmsley, and the noble Lord, Lord Hylton, sufficient comfort and that they will feel confident in seeing the amendment withdrawn.

Baroness Walmsley: My Lords, I thank the Minister for his response. On this occasion, I believe that we have to rely on the recommendations of the youth offending team officers in relation to the treatment being not only suitable and relevant to the young person but also in relation to the young person understanding and agreeing with it. It is not so much the suitability but the state of mind of the young person that is most important, and the court must be absolutely clear about that. I am particularly concerned about the 10 to 14 year-old group in this case. However, I do not intend to press the matter at present and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Walmsley: moved Amendment No. 232:
	Page 301, line 37, leave out from beginning to end of line 11 on page 302.

Baroness Walmsley: My Lords, in moving Amendment No. 232, I shall speak also to Amendment No. 235. The purpose of both amendments is to remove the testing requirement in action plan and supervision orders that can be applied where a treatment requirement has already been made and to ensure that testing is rooted in treatment and is not seen as an intervention in and of itself.
	Paragraphs 1(2)(4E), (4F), (4G) and (4H) of Schedule 22 provide for the addition of testing requirements to action plan and supervision orders where a treatment requirement has already been decided upon for offenders aged 14 and over.
	The children's organisations believe that those requirements are entirely unnecessary, given that where drug testing is believed by professionals to be necessary as part of treatment monitoring, it could already be detailed within a treatment plan under the treatment requirement. Failure to comply with treatment, including, therefore, any testing that formed part of the treatment programme, would already result in breach.
	My principal concern in returning to this issue is that the addition of testing requirements on top of treatment requirements as separate breachable conditions of sentence will "rack up" the conditions imposed by an order, in turn heightening the risks of the young person's failure to comply with an order.
	Drug treatment and testing orders for adults have shown a very high rate of breach—88 per cent of DTTOs made in 2002 were breached, as we heard reported in the media only recently. I am concerned that adding unnecessary requirements to similar orders for young people will be setting them up to fail, when it is in everyone's interests that they are supported to succeed in their treatment. The answer given by the noble Lord, Lord Bassam, in Committee did nothing to convince me that there is no threat to the proportionality of the court's response if it uses those measures. I believe that it would create layers of additional requirements on the young person.
	In response to my amendments tabled in Committee on this matter, the Minister clarified that the intention behind the attachment of testing requirements, where a treatment requirement is already being made, is consistent with the other provisions for drug testing at the charge, pre-sentence and licence stages. However, there is an important difference. In other cases, testing is proposed as a means of identifying possible treatment needs. However, in the case of a young person who is already known and identified as having a drug problem, a court-ordered requirement for testing, concurrent with the treatment regime, is clearly not about identifying treatment needs. In fact, it gives a clear expression at the outset of treatment that there is a lack of belief or trust that the young person will be able to succeed in his treatment. That is the case to such an extent that testing should be made separately a compulsory and breachable requirement.
	That is not to argue against the value of testing by the treatment provider in certain cases as a means of monitoring the young person's progress. Treatment providers can, and do, use drug testing to monitor progress and, more importantly, to ensure the safety of the young person where he is being prescribed medication. It should be possible to test where it is considered appropriate as part of treatment.
	In Committee, the Minister stated that the testing requirements in these provisions were consistent with those made in drug treatment and testing orders. The evaluation of drug treatment and testing order pilots commissioned by the Home Office found that rates of positive tests were high, although they did not necessarily reflect a failure to progress with treatment. The report of the evaluation stated that for those who are quick to abstain successfully from class A drugs, positive tests can reinforce success. However, it also reported that,
	"frequent testing is expensive and pointless for those who continue to use drugs; and, tests can be destructive to the motivation of those who are reducing their drug use but not managing to stop it completely".
	That is taken from Home Office Research Study 212, 2000.
	The same evaluation found that older offenders who had been dependent for longer were more likely to do well under the orders because of their stronger desire finally to give up drugs. Given that the young people who will be subject to these new provisions will be on average at least 10 years younger than the average DTTO offender during the DTTO pilots, these findings should be considered an important source of information about their likely impact on the motivation of young people who may be working hard but succeeding only slowly with the difficult process of coming off class A drugs.
	I believe that the case has not been made for attaching a separate testing requirement on top of a treatment requirement to an action plan and supervision order. The amendments would reflect the reality of treatment provision. Testing is not and should not be seen as a stand-alone intervention where drug use has already been identified. I beg to move.

Lord Bassam of Brighton: My Lords, Amendments Nos. 232 and 235 would remove the ability of the court to include a drug-testing requirement alongside the treatment requirement for those aged 14 and over as part of a coherent action plan order or a supervision order.
	It is worth repeating that the purpose of this provision is not to set up young offenders to fail, as the noble Baroness suggested may happen. Allowing a testing requirement to be included in the orders is necessary to assist the responsible officer or treatment provider in ascertaining whether the treatment the offender is receiving is effective. It is also a highly useful tool for the treatment provider to tailor the treatment according to the needs of the offender.
	Testing is integral to the treatment and an indicator of the young offender's progress with the treatment he is receiving. As we have stated in the past, we anticipate that these provisions will be used primarily for problematic drug-misusing offenders who lead a chaotic and disturbed lifestyle. We further anticipate and suggest that the testing requirement will be used primarily in the case of misuse of specified class A drugs which are the drugs which are commonly acknowledged to cause the most harm. As we have also said, we intend to introduce these provisions in limited areas initially so that their effectiveness can be further evaluated.
	I fully understand the arguments that have been put forward that this adds another layer to the requirements of the order and therefore another condition which could be breached. However, as we have made clear, we recognise the multiple problems often affecting young offenders such as those who need treatment for their drug misuse in addition to other programmes for their offending behaviour. We also recognise that it will take time for them to become drug free. These considerations will be taken into account when the issue of breach is considered. I assure the noble Baroness, as we propose to make clear in guidance, that an assessment of breach will be made on the basis of the offender's overall progress and compliance with the elements of the order.
	For those reasons we believe that the amendments should be resisted. I cannot agree that this is a stand-alone provision. We do not see it in that way, but as part of a cohesive and coherent programme. For those reasons we shall continue to resist the amendments which were similarly moved in Committee.

Baroness Walmsley: My Lords, I thank the Minister for his response. I accept that any demotivating element or feeling that a child has been set up to fail would be an unintended consequence. However, it is a real consideration that should be taken into account. If a testing order is not made an essential element of the action plan, it does not mean that testing could not take place. What it boils down to is the fact that I would rather leave it to the professionals to decide whether it would help a young person to progress. That is the way that it would work best in the interests of a young person coming off drugs. Clearly, we share that objective with the Government. I do not intend to press the amendment. I thank the Minister for his further explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 233 to 235 not moved.]
	Schedule 24 [Increase in maximum term for certain summary offences]:

Baroness Scotland of Asthal: moved Amendment No. 235ZA:
	Page 319, line 34, at end insert—
	"(4A) In section 62B (failure to comply with direction under section 62A: offences), in subsection (3), for "3 months" there is substituted "51 weeks"."

Baroness Scotland of Asthal: My Lords, in moving Amendment No. 235ZA I shall speak also to Amendments Nos. 235ZB and 235ZC. I hope that I can take these matters very shortly. These amendments increase the maximum penalties for the offences linked to measures in the Anti-social Behaviour Bill to deal with trespasses on land, raves and noisy premises, so as to ensure that they are compatible with the new sentencing framework in the Criminal Justice Bill. I beg to move.

Lord Hylton: My Lords, I am surprised to see an amendment to the Anti-social Behaviour Bill, which is not yet law, incorporated in this Bill. Perhaps the Minister can explain that apparent anomaly.
	As regards Amendment No. 235ZC, I understood from our earlier discussions on anti-social behaviour that closure of noisy premises was intended to be a very short-term measure so that an immediate problem could be sorted out and a serious nuisance stopped for a short period. Now it appears that three months is to be extended to 51 weeks. Can the noble Baroness account for that?

Baroness Scotland of Asthal: My Lords, that is in order to make the provisions compatible. I had sought to shorten the debate, but I am happy to explain how each of the amendments operates.
	Amendments Nos. 235ZA, 235ZB and 235ZC, to which the noble Lord, Lord Hylton, made reference, make the necessary changes to the maximum penalties available for certain offences in the Anti-social Behaviour Bill so as to ensure that they may be compatible with the new sentencing framework. By adding these offences to Schedule 24 they will have their maximum penalties increased from three months to 51 weeks' imprisonment on the introduction of the new short custodial sentences contained in the Criminal Justice Bill. It simply allows the court to deal with them in an appropriate way and make them subject to those provisions.
	Amendments Nos. 235ZA and 235ZB bring the penalties to deal with raves and trespasses on land in the Anti-social Behaviour Bill into line with the penalties for similar offences, which are already listed in Schedule 24. We have tabled them at this stage as it is likely—I put it no higher—that the Anti-social Behaviour Bill will precede this Bill on to the statute book.
	Amendment No. 235ZC amends the maximum penalty for the offence of opening premises in contravention of a closure order under Clause 46 of the Anti-social Behaviour Bill. This clause deals with the closure of noisy premises so the two need to dovetail with one another. The synergy is there and will now be reflected in the Bill. I hope, therefore, that we shall not have to return to it for further amendment. I have learnt the lesson from this that short-cuts are never really worth taking.

On Question, amendment agreed to.

Baroness Scotland of Asthal: moved Amendment No. 235ZB:
	Page 319, line 36, leave out "subsection (6)" and insert "subsections (6) and (7B)"
	On Question, amendment agreed to.

Baroness Scotland of Asthal: moved Amendment No. 235ZC:
	Page 321, line 35, at end insert—

"Anti-social Behaviour Act 2003 (c. 00)

In section 47 of the Anti-social Behaviour Act 2003 (closure of noisy premises), in subsection (5)(a), for "three months" there is substituted "51 weeks."
	On Question, amendment agreed to.
	[Amendment No. 235A had been re-tabled as Amendment No. 236FA.]
	Clause 265 [Minimum sentence for certain firearms offences]:

Baroness Scotland of Asthal: moved Amendment No. 235B:
	Page 149, line 28, after "(ae)" insert ", (af)"

Baroness Scotland of Asthal: These amendments are technical. I shall put them into order because they were previously in another group. We may be transposing the groups. In moving Amendment No. 235B, I shall speak also to Amendments Nos. 236A and 236B, 236D to 236F, 236J, 248A and 248B. I shall attempt to take the issues shortly. Perhaps noble Lords could indicate whether they are comfortable with that position.
	Amendments Nos. 235B, 236A and 236B apply the minimum sentence for unlawful possession of prohibited firearms to Brocock-type air weapons, which are being prohibited in the Anti-social Behaviour Bill. The prohibition is necessary because the weapons are vulnerable to conversion to fire live ammunition and have become popular with criminals. They should therefore attract the minimum sentence.
	Amendments Nos. 236D to 236F and 248A and 248B extend to Northern Ireland the increased maximum sentence for smuggling prohibited firearms. Amendment Nos. 236D to 236F also apply to the maximum sentence for smuggling Brocock-type air weapons.
	Amendment No. 236J will enable the minimum sentence provisions and the maximum sentence for smuggling firearms to be applied to any dangerous firearms that may be prohibited in the future. Section 1(4) of the Firearms (Amendment) Act 1988 contains a power for the Secretary of State to make an order to add specifically dangerous firearms to the list of prohibited weapons in Section 5 of the Firearms Act 1968. Changes to this power are being made in the Anti-social Behaviour Bill and will allow a future order to include some, but not all, of the amendments necessary to apply sentencing provisions in the Criminal Justice Bill to any firearms prohibited in the future. They will enable an order to amend the principal Act—the Firearms Act—but not other enactments.
	Amendment No. 236J addresses that issue by enabling an order to make the necessary amendments to the Powers of Criminal Courts (Sentencing) Act 2000 and the Customs and Excise Management Act 1979. I beg to move.

On Question, amendment agreed to.

Lord Monson: moved Amendment No. 236:
	Page 149, line 34, leave out from "that" to end of line 36 and insert "in relation to all the circumstances relating to the offence or to the offender it would be unjust to do so"

Lord Monson: My Lords, my noble and learned friend Lord Ackner was hoping that the amendment would come up before seven o'clock. I wish to move the amendment, however inadequately, because I think that the matter is too important not to be discussed.
	When we last debated the matter about five weeks ago, I asked the Minister which other first world countries imposed minimum sentences for crimes other than murder: I was well aware that a number of third world countries did so. The noble Baroness was kind enough to write me an extremely helpful and comprehensive letter—as incidentally, to their eternal credit, is the habit of most Ministers in this particular administration—for which I thank her. Her letter listed five first world countries in which minimum sentences apply for crimes other than murder. In alphabetical order those are: Germany, the Republic of Ireland, Russia, Switzerland and the United States of America.
	Even if one counts Russia as a first world rather than a second world country—which is open to question, certainly as far as concerns per capita GDP and the treatment of political opponents—I do not think that it is a very good mentor regarding penal policy. Nor, for different reasons, do I think that the USA is a very good mentor, much as I admire it in most other respects. That leaves Germany, the Republic of Ireland and Switzerland. In Switzerland the minimum sentences are six months for burglary and 12 months for drug offences. They are extremely low; it is impossible to imagine lower sentences being imposed ever in the absence of minimum sentence legislation. In Germany the minimum sentences are a little higher but still low: they are one to two years for certain drug dealing offences. Only in the Republic of Ireland is there a particularly severe minimum sentence—10 years for the dealing in drugs of a value of 12,700 euros or more, which is equivalent to about £8,500 to £9,000 sterling.
	I realise that the amendment of my noble and learned friend Lord Ackner does not remove the minimum sentence requirement, it merely makes it a little less draconian. Nevertheless, it is better than nothing. I beg to move.

Baroness Scotland of Asthal: My Lords, I say straight away to the noble Lord that I am grateful that he categorised Germany and Switzerland at least as first world countries which do not suffer from the normal difficulties that he identified in relation to others. Of course, we say that those countries are used just as an indicator that this is not outwith that which can be done. There will be regional differences. I would hope that the noble Lord recognises that Ireland has a particular resonance for us, in terms of the common law tradition, the way in which the judiciary is structured and indeed the response to its difficulties. It is similar in that sense to our position. The noble Lord was quite right to identify the sentence in relation to drug matters.
	The amendment is identical to one tabled but not moved by the noble and learned Lord, Lord Ackner, in Committee. Its purpose was to ensure that courts have sufficient discretion not to impose the new minimum sentence for certain firearms offences in cases where it would be unjust.
	Clause 265 requires the court to impose the minimum sentence unless there are exceptional circumstances relating to the offence or to the offender which justify its not doing so. This is designed to ensure that the minimum sentence is applied as widely as possible, but that it is not used in cases where it would clearly be disproportionate.
	The amendment would replace this exceptional circumstance with one that would allow the courts to have regard to all the circumstances relating to the offence or to the offender and to decide not to impose the minimum sentence if it would be unjust to do so.
	We understand why the noble Lord put the issue in that way, but we think that the test we have in the Bill will enable the court to exercise its discretion. It is also true—and this has been mentioned throughout the passage of this Bill—that the whole issue of drug crime, which is more and more supported by gun crime, has become a real problem. It is a scourge. We must make an appropriate response. We think that this provision has sufficient safeguards to enable matters to be dealt with appropriately. We ask the noble Lord not to press the amendment.

Lord Monson: My Lords, I am grateful to the noble Baroness for her extremely thorough reply. She mentioned the Republic of Ireland as having the same common law tradition as ourselves, which is indeed the case, but it is significant that it does not have a minimum sentence for firearms offences—only, apparently, judging by the answer in her letter, for serious drug offences. Nevertheless, although I have no idea what the noble and learned Lord, Lord Ackner, would have said were he standing just behind me, I think that it was worth airing the matter and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 266 [Certain firearms offences to be triable only on indictment]:

Baroness Scotland of Asthal: moved Amendment No. 236A:
	Page 150, line 38, column 1, after "(ae)" insert ", (af)"
	On Question, amendment agreed to.
	Clause 267 [Power to sentence young offender to detention in respect of certain firearms offences: England and Wales]:

Baroness Scotland of Asthal: moved Amendment No. 236B:
	Page 151, line 23, after "(ae)" insert ", (af)"
	On Question, amendment agreed to.

Lord Bassam of Brighton: moved Amendment No. 236C:
	After Clause 269, insert the following new clause—
	"SENTENCING FOR FIREARMS OFFENCES IN NORTHERN IRELAND
	Schedule (Sentencing for firearms offences in Northern Ireland) (which contains amendments of the Firearms (Northern Ireland) Order 1981 (S.I. 1981/155(N.I. 2)) relating to sentencing) shall have effect."

Lord Bassam of Brighton: My Lords, this group of amendments makes provision for mandatory minimum sentences in Northern Ireland. They also provide technical and consequential modifications necessary to ensure the proper functioning of those provisions in Northern Ireland. They have been tabled following legitimate expressions of concern legitimately raised by local political representatives. My right honourable friend the Secretary of State for Northern Ireland has concluded that the community in Northern Ireland should benefit from those important new measures.
	Amendment No. 247A, which is grouped, corrects a minor drafting error from Committee. I beg to move.

On Question, amendment agreed to.
	Clause 270 [Increase in penalty for offences relating to importation or exportation of certain firearms]:

Lord Bassam of Brighton: moved Amendments Nos. 236D to 236F:
	Page 152, line 27, leave out from "of" to "prohibition" in line 32 and insert—
	"(a) an offence under subsection (2) or (3) above committed in Great Britain in connection with a prohibition or restriction on the importation of any weapon or ammunition that is of a kind mentioned in section 5(1)(a), (ab), (aba), (ac), (ad), (ae), (af) or (c) or (1A)(a) of the Firearms Act 1968,
	(aa) any such offence committed in Northern Ireland in connection with a prohibition or restriction on the importation of any weapon or ammunition that is of a kind mentioned in Article 6(1)(a), (ab), (ac), (ad), (ae) or (c) or (1A)(a) of the Firearms (Northern Ireland) Order 1981, or
	(b) any such offence committed in connection with the" Page 152, line 38, leave out from "of" to "prohibition" in line 43 and insert—
	"(a) an offence under subsection (2) or (3) above committed in Great Britain in connection with a prohibition or restriction on the exportation of any weapon or ammunition that is of a kind mentioned in section 5(1)(a), (ab), (aba), (ac), (ad), (ae), (af) or (c) or (1A)(a) of the Firearms Act 1968,
	(aa) any such offence committed in Northern Ireland in connection with a prohibition or restriction on the exportation of any weapon or ammunition that is of a kind mentioned in Article 6(1)(a), (ab), (ac), (ad), (ae) or (c) or (1A)(a) of the Firearms (Northern Ireland) Order 1981, or
	(b) any such offence committed in connection with the" Page 153, line 5, leave out from "of" to "prohibitions" in line 9 and insert—
	"(a) an offence under subsection (2) or (3) above committed in Great Britain in connection with a prohibition or restriction on the importation or exportation of any weapon or ammunition that is of a kind mentioned in section 5(1)(a), (ab), (aba), (ac), (ad), (ae), (af) or (c) or (1A)(a) of the Firearms Act 1968,
	(aa) any such offence committed in Northern Ireland in connection with a prohibition or restriction on the importation or exportation of any weapon or ammunition that is of a kind mentioned in Article 6(1)(a), (ab), (ac), (ad), (ae) or (c) or (1A)(a) of the Firearms (Northern Ireland) Order 1981, or
	(b) any such offence committed in connection with the"
	On Question, amendments agreed to.

Lord Bassam of Brighton: moved Amendment No. 236FA:
	Before Schedule 27, insert the following new schedule—

"SENTENCING FOR FIREARMS OFFENCES IN NORTHERN IRELAND

1 The Firearms (Northern Ireland) Order 1981 (S.I. 1981/155(N.I. 2)) is amended as follows.
	2 In Article 2(2) (interpretation) after the definition of "firearms dealer" there is inserted—
	"handgun" means any firearm which either has a barrel less than 30 centimetres in length or is less than 60 centimetres in length overall, other than an air weapon, a muzzle-loading gun or a firearm designed as signalling apparatus;".
	3 In Article 3(1) (requirement of firearm certificate) for sub-paragraph (a) there is substituted—
	"(aa) has in his possession, or purchases or acquires, a handgun without holding a firearm certificate in force at the time, or otherwise than as authorised by such a certificate;
	(ab) has in his possession, or purchases or acquires, any firearm, other than a handgun, without holding a firearm certificate in force at the time, or otherwise than as authorised by such a certificate; or".
	4 After Article 52 of that Order there is inserted—
	"52A MINIMUM SENTENCE FOR CERTAIN OFFENCES
	(1) This Article applies where—
	(a) an individual is convicted of—
	(i) an offence under Article 3(1)(aa),
	(ii) an offence under Article 6(1)(a), (ab), (ac), (ad), (ae) or (c), or
	(iii) an offence under Article 6(1A)(a), and
	(b) the offence was committed after the commencement of this Article and at a time when he was aged 16 or over.
	(2) The court shall—
	(a) in the case of an offence under Article 3(1)(aa) committed by a person who was aged 21 or over when he committed the offence, impose a sentence of imprisonment for a term of five years (with or without a fine), and
	(b) in any other case, impose an appropriate custodial sentence for a term of at least the required minimum term (with or without a fine)
	unless (in any of those cases) the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.
	(3) Where an offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it shall be taken for the purposes of this Article to have been committed on the last of those days.
	(4) In this Article—
	"appropriate custodial sentence" means—
	(a) in the case of an offender who is aged 21 or over when convicted, a sentence of imprisonment, and
	(b) in the case of an offender who is aged under 21 at that time, a sentence of detention under section 5(1) of the Treatment of Offenders Act (Northern Ireland) 1968;
	"the required minimum term" means—
	(a) in the case of an offender who was aged 21 or over when he committed the offence, five years, and
	(b) in the case of an offender who was aged under 21 at that time, three years."
	5 After Article 52A there is inserted—
	"52B POWER BY ORDER TO EXCLUDE APPLICATION OF MINIMUM SENTENCE TO THOSE UNDER 18
	(1) The Secretary of State may by order—
	(a) amend Article 52A(1)(b) by substituting for the word "16" the word "18", and
	(b) make such other provision as he considers necessary or expedient in consequence of, or in connection with, the provision made by virtue of sub-paragraph (a).
	(2) The provision that may be made by virtue of paragraph (1)(b) includes, in particular, provision amending or repealing any statutory provision within the meaning of section 1(f) of the Interpretation Act (Northern Ireland) 1954 (whenever passed or made).
	(3) An order under paragraph (1) shall be subject to annulment in pursuance of a resolution of either House of Parliament in like manner as a statutory instrument and section 5 of the Statutory Instruments Act 1946 shall apply accordingly."
	6 (1) Schedule 2 (table of punishments) is amended as follows.
	(2) For the entry relating to offences under Article 3(1) (purchase, acquisition or possession of firearm or ammunition without firearm certificate.) there is substituted—
	
		
			 "Article 3(1)(aa) Purchase, acquisition or possession of handgun without firearm certificate Indictment 10 years or a fine, or both 
			 Article 3(1)(ab) Purchase, acquisition or possession without firearm certificate of firearm other than handgun (a) Summary 1 year or a fine of the statutory maximum, or both 
			   (b) Indictment 5 years or a fine, or both 
			 Article 3(1)(b) Purchase, acquisition or possession of ammunition without firearm certificate (a) Summary 1 year or a fine of the statutory maximum, or both 
			   (b) Indictment 5 years or a fine, or both 
		
	
	(3) For the entries relating to offences under Article 6(1) (manufacture, dealing in or possession of prohibited weapons) and Article 6(1A) (possession of or dealing in other prohibited weapons) there is substituted—
	
		
			 "Article 6(1)(a), (ab), (ac), (ad), (ae) and (c) Manufacture, dealing in or possession of prohibited weapons. Indictment 10 years or a fine, or both 
			 Article 6(1)(b) Manufacture, dealing in or possession of prohibited weapon designed for discharge of noxious liquid etc. (a) Summary 1 year or a fine of the statutory maximum, or both 
			   (b) Indictment 10 years or a fine, or both 
			 Article 6 (1A)(a) Possession of or dealing in firearm disguised as other object Indictment 10 years or a fine, or both 
			 Article 6(1A)(b),(c), (d), (e), (f) or (g) Possession of or dealing in other prohibited weapons (a) Summary 6 months or a fine of the statutory maximum, or both. 
			   (b) Indictment 10 years or a fine, or both"." 
		
	
	On Question, amendment agreed to.
	Schedule 28 [Further provision about new method]:

Baroness Scotland of Asthal: moved Amendment No. 236G:
	Page 328, leave out lines 27 to 31.

Baroness Scotland of Asthal: My Lords, government Amendments Nos. 236G, 236H, 236J to 236Q, 246A and 246B ensure that the Bill's provisions interact correctly with Scottish legislation. Further details about the effect of each of the amendments can be provided, but they are technical. I beg to move.

On Question, amendment agreed to.

Baroness Scotland of Asthal: moved Amendments Nos. 236H to 236T:
	Page 331, line 37, at end insert—

"Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c. 55)

30A In Schedule 1 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (ineligibility for and disqualification and excusal from jury service), in Part 2, in paragraph (bb), for sub-paragraph (v) there is substituted—
	"(v) a community order within the meaning of section 159 of the Criminal Justice Act 2003;
	(va) a youth community order as defined by section 33 of the Powers of Criminal Courts (Sentencing) Act 2000;"." Page 334, line 43, at end insert—

"Firearms (Amendment) Act 1988 (c. 45)

46A The Firearms (Amendment) Act 1988 is amended as follows.
	46B In section 1 (prohibited weapons and ammunition), in subsection (4A) after paragraph (b) there is inserted—
	"(bb) may amend subsection (1A)(a) of section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (offenders under 18 convicted of certain serious offences: power to detain for specified period) so as to include a reference to any provision added by the order to section 5(1) of the principal Act,
	(bc) may amend section 50(5A)(a), 68(4A)(a) or 170(4A)(a) of the Customs and Excise Management Act 1979 (offences relating to improper importation or exportation) so as to include a reference to anything added by the order to section 5(1) of the principal Act,".
	46C In section 27(4) (which relates to Northern Ireland), after "Except for" there is inserted "section 1, so far as enabling provision to be made amending the Customs and Excise Management Act 1979, and". Page 337, line 20, at end insert—
	"(aa) after subsection (1) there is inserted—
	"(1AA) This Part of this Act, except section 2(9), applies also to a transferred life prisoner—
	(a) who is transferred from England and Wales on or after the date on which section 247 of the Criminal Justice Act 2003 comes into force,
	(b) in relation to whom paragraph 3 of Schedule 20 to that Act applies by virtue of paragraph 2(a) of that Schedule, but
	(c) in respect of whom, under the paragraph so applying, no order has been made,
	as if the prisoner were a life prisoner within the meaning of section 2 of this Act and the punishment part of his sentence within the meaning of that section were the notified minimum term defined by paragraph 3(4) of that Schedule."; and" Page 338, line 6, at end insert—
	"(1A) In subsection (1), the words after paragraph (b) are omitted." Page 338, line 12, at end insert—
	"(2A) In subsection (3), the words "or to vary" to "one hundred" are omitted." Page 338, line 24, at end insert—
	"(3A) After subsection (4) there is inserted—
	"(4A) A probation order made or amended under this section must specify as the corresponding requirements for the purposes of this section requirements which could be included in a community order made under section 159 of the Criminal Justice Act 2003."" Page 338, line 27, leave out from "made" to end of line and insert "by a magistrates' court under section 159 of that Act and imposing the requirements specified under subsection (4A) above"
	Page 338, line 28, leave out sub-paragraph (5) and insert—
	"(5) For subsection (6) there is substituted—
	"(6) In its application to a probation order made or amended under this section, Schedule 7 to the Criminal Justice Act 2003 has effect subject to the following modifications—
	(a) any reference to the responsible officer has effect as a reference to the person appointed or assigned under subsection (1)(a) above,
	(b) in paragraph 9—
	(i) paragraphs (b) and (c) of sub-paragraph (1) are omitted,
	(ii) in sub-paragraph (6), the first reference to the Crown Court has effect as a reference to a court in Scotland, and
	(iii) any other reference in sub-paragraphs (6) or (7) to the Crown Court has effect as a reference to the court in Scotland, and
	(c) Parts 3 and 5 are omitted."" Page 339, line 43, leave out from beginning to "in" in line 44 and insert—
	"69A The Criminal Justice (Northern Ireland) Order 1996 is amended as follows.
	69B In Article 2 (interpretation) after paragraph (8) there is inserted—
	"(9) For the purposes of this Order, a sentence falls to be imposed under paragraph (2) of Article 52A of the Firearms (Northern Ireland) Order 1981 if it is required by that paragraph and the court is not of the opinion there mentioned."
	69C In Article 4 (absolute and conditional discharge), in paragraph (1), for "(not being an offence for which the sentence is fixed by law)" there is substituted "(not being an offence for which the sentence is fixed by law or falls to be imposed under Article 52A(2) of the Firearms (Northern Ireland) Order 1981)".
	69D In Article 10 (probation orders), in paragraph (1) for "(not being an offence for which the sentence is fixed by law)" there is substituted "(not being an offence for which the sentence is fixed by law or falls to be imposed under Article 52A(2) of the Firearms (Northern Ireland) Order 1981)".
	70 (1) Article 13 (community service orders) is amended as follows.
	(2) In paragraph (1) for "(not being an offence for which the sentence is fixed by law)" there is substituted "(not being an offence for which the sentence is fixed by law or falls to be imposed under Article 52A(2) of the Firearms (Northern Ireland) Order 1981)". Page 339, line 48, at end insert—
	"70A In Article 15 (orders combining probation and community service), in paragraph (1) for "(not being an offence for which the sentence is fixed by law)" there is substituted "(not being an offence for which the sentence is fixed by law or falls to be imposed under Article 52A(2) of the Firearms (Northern Ireland) Order 1981)".
	70B In Article 19 (restrictions on imposing custodial sentences), at the end of paragraph (1) there is inserted "or falling to be imposed under Article 52A(2) of the Firearms (Northern Ireland) Order 1981".
	70C In Article 20 (length of custodial sentences), at the end of paragraph (1) there is inserted "or falling to be imposed under Article 52A(2) of the Firearms (Northern Ireland) Order 1981".
	70D In Article 24 (custody probation orders), in paragraph (1) for "other than one fixed by law" there is substituted ", other than an offence for which the sentence is fixed by law or falls to be imposed under Article 52A(2) of the Firearms (Northern Ireland) Order 1981,". Page 340, line 8, leave out "section 228(5)" and insert "section (Persons liable to removal from the United Kingdom)"
	Page 342, line 20, leave out paragraph 76.
	On Question, amendments agreed to.
	[Amendment No. 237 not moved.]

Baroness Scotland of Asthal: moved Amendment No. 237A:
	Page 360, line 12, at end insert—

"Sexual Offences Act 2003

129A The Sexual Offences Act 2003 is amended as follows.
	129B In section 131 (application of Part 2 to young offenders), after paragraph (j) there is inserted—
	"(k) a sentence of detention for public protection under section 208 of the Criminal Justice Act 2003,
	(l) an extended sentence under section 210 of that Act,".
	129C In section 133 (general interpretation), at the end of paragraph (a) of the definition of "community order" there is inserted "(as that Act had effect before the passing of the Criminal Justice Act 2003)"."
	On Question, amendment agreed to.

Baroness Scotland of Asthal: moved Amendment No. 237B:
	Page 361, line 22, at end insert—
	:TITLE3:"Army Act 1955 (3 & 4 Eliz. 2 c. 18)
	In section 61 of the Army Act 1955, for the words from "the like" to "section nineteen of this Act" there is substituted "dismissal from Her Majesty's service with or without disgrace, to detention for a term not exceeding three months,".
	:TITLE3:Air Force Act 1955 (3 & 4 Eliz. 2 c. 19)
	In section 61 of the Air Force Act 1955, for the words from "the like" to "section nineteen of this Act" there is substituted "dismissal from Her Majesty's service with or without disgrace, to detention for a term not exceeding three months,".
	:TITLE3:Naval Discipline Act 1957 (c. 53)
	In section 34A of the Naval Discipline Act 1957, for the words "imprisonment for a term not exceeding three months" there is substituted "dismissal from Her Majesty's service with or without disgrace, detention for a term not exceeding three months,"."

Baroness Scotland of Asthal: My Lords, Amendments Nos. 237B and 237C are consequential to provisions in the Bill that alter the penalties of various offences in Service Acts. The amendments ensure that the consequential changes are made to the relevant Acts, so that the penalties for similar offences concerning the provision of false information are considered. I beg to move.

On Question, amendment agreed to.

Baroness Scotland of Asthal: moved Amendment No. 237C:
	Page 361, line 35, at end insert—

"Reserve Forces Act 1996 (c. 14)

In paragraph 5(3) of Schedule 1 to the Reserve Forces Act 1996, for the words "imprisonment for a term not exceeding three months" there is substituted "dismissal from Her Majesty's service with or without disgrace, to detention for a term not exceeding 3 months,"."
	On Question, amendment agreed to.
	Clause 283 [Limit on period of detention without charge of suspected terrorism]:

Lord Lloyd of Berwick: moved Amendment No. 238:
	Leave out Clause 283.

Lord Lloyd of Berwick: My Lords, this is a free-standing amendment that I suggest is of some importance because it affects the liberty of the subject. Clause 283 amends the Terrorism Act 2000 by increasing from seven to 14 days the period during which a suspected terrorist can be detained without charge. The purpose of my amendment is simply to leave out Clause 283.
	In Committee, the Minister replied at considerable length—for which I am sure that the whole House was and remains grateful. However, I regret that I am still not persuaded that such a sudden and dramatic inroad into the liberty of the subject has been justified. The House will remember that in the case of all ordinary offences, the maximum period for which a man can be held without charge is four days. That is so however serious the offence—even including the most serious offences—and however difficult or protracted the investigation. That four days represents less than one third of what is now proposed in the case of terrorist offences.
	I asked the Minister to remind the Committee about recent terrorist occurrences on the mainland of Great Britain, since it seemed to me that the number of such incidents would be of great relevance to whether Clause 283 should stand part. She was then unable to give the Committee that information, but this morning I checked the facts with the Centre for the Study of Terrorism at St Andrews under the chairmanship of Professor Wilkinson.
	The most recent terrorist incident involving loss of life was in February 1996, at Canary Wharf, where two people were killed. In June 1996, there was an incident in Manchester city centre, where about 200 people were injured—I believe that no one was killed, but I may be wrong. There was then a gap of five years until 4th March 2001 when there was an explosion at the BBC in west London in which one person was injured. In May 2001, a device exploded at Hendon—again, one person was injured. In August 2001, there was an explosion at Ealing Broadway, when seven persons were injured. In the same month, a device was discovered in Birmingham that failed to go off. Since 2001, there have been no incidents of terrorism of any kind on the mainland of the United Kingdom.
	So in the eight years since 1996, there have been only two deaths.

Lord Carlile of Berriew: My Lords, I am grateful to the noble and learned Lord. I know that it is difficult to discuss matters that are pending before the courts, but I am sure that he would want to bear in mind that there are such matters, including the incident that led to the death of Detective Constable Oake in Manchester last year, which is alleged to be part of a terrorist incident.

Lord Lloyd of Berwick: My Lords, I am grateful for that intervention and of course shall turn to more recent incidents—especially those subject to current investigation—in due course.
	As I said, there has been a gap of five years and a total of two people killed back in 1996. In the three years since 2001, a total of nine people have been injured. All of those were incidents of Irish terrorism. There has not been a single incident of international terrorism, unless one counts the Lockerbie air disaster, about which we could clearly have done nothing.
	It may be said that there have been no incidents of terrorism since 2001 because the Anti-Terrorist Squad has been so successful. I am happy to accept that that has been so, but that argument is self-defeating. If the Anti-Terrorist Squad has managed to keep us safe since 2001 with the seven days allowed under the Terrorism Act 2000, why does it suddenly need 14 days now? International terrorism was not invented in 2001.
	Why do I stress the absence of any incident of international terrorism? The whole basis of the argument of the Minister when she replied and the whole basis of the speech of the noble Lord, Lord Carlile of Berriew, whom I am glad to see in his seat, was that the nature of terrorism had changed since 2000, when seven days were thought sufficient. It is said to have changed because international terrorism is so much more difficult to prove than Irish terrorism. Indeed, when listening to the Minister and to the noble Lord on the Liberal Democrat Benches, I almost had the impression that, if we were concerned only with Irish terrorism, they would have been perfectly content to continue to accept seven days as the appropriate period for detention. No arguments to the contrary were advanced; all their arguments were based on the threat of international terrorism.
	What is so special about the threat of international terrorist activity? It is said that there can be language difficulties in investigating such cases. If a terrorist suspect is arrested in north Norfolk, for example, very few Arabic interpreters would be available locally. But the answer to that objection is perfectly simple: Schedule 8 to the Terrorism Act 2000 gives the Secretary of State a power to designate places where terrorist suspects are to be detained. Surely there would be no difficulty in bringing terrorist suspects to London, where plenty of interpreters would be available to carry the matter forward.
	The second difficulty—I refer here to the three difficulties to which the Minister referred in her letter to me—is that of analysing hard drives in computers. That argument was utterly demolished in Committee by the noble Lord, Lord Thomas of Gresford, when he observed—I have no reason to disbelieve him—that it takes far longer than 14 days to analyse the hard drives in computers. So I hope that we shall not hear that argument again.
	Thirdly, it is said that, with the advent of chemical and biological weapons, time is needed to analyse substances which may be found on the terrorist's person or in his premises. However, chemical and biological weapons have been with us since at least the atrocity on the Japanese underground many years ago. They are the favoured weapons of international terrorists. So there is nothing new here.
	In any event, if they had validity, all the three points on which the Minister relied would have been raised when we were asked to pass the Anti-terrorism, Crime and Security Act 2001. That Act was passed in a great hurry during the immediate aftermath of 9/11. Many regarded it as a profoundly illiberal measure. It is the Act under which eight suspects are still being detained without trial after a period of 20 months. Further, and perhaps more relevant to our present purposes, Part 6 contains detailed provisions relating to chemical and biological weapons.
	If the analysis of chemical and biological substances requires 14 days rather than seven days, as is now suggested, why was that point not raised in 2001 when the anti-terrorism Act was passed? Surely that was the appropriate occasion, when the House was addressing the question of terrorism. The opportunity was not taken at the time, no doubt because it was thought that such an amendment was not necessary. Yet here we are, less than two years later, being asked to tack on to the end of an immensely long Criminal Justice Bill a provision relating to terrorism which has nothing whatever to do with the rest of the Bill. It is hard to find anything which is not covered in this legislation, but there is no mention of terrorism until we come to Clause 283.
	What has changed since 2001 to make this provision so necessary? I would say: precisely nothing. Certainly there have been no incidents of international terrorism. A number of figures were cited by the Minister on the last occasion. Of the 212 people who were arrested between January 2002 and March 2003, only 16 were detained for six days. That does not suggest any great urgency or major change in circumstances. All those 16—here I address the point raised by the noble Lord, Lord Carlile—concerned a single operation following the discovery in January 2003 of ricin in north London. I wait to be corrected if I am wrong about that. Of the 16, 11 have made appearances in court, four have been charged under Section 57 and one charged with the non-terrorist offence of forgery. Those figures hardly spell out any great need for a change in the law.
	So far as I can tell, nothing was said by the noble Lord, Lord Carlile, in his report published at the end of 2002 to suggest that seven days was inadequate. Nothing was suggested in the report of the independent commissioner for the detained terrorist suspects. I suggest that the evidence on which to change the law so radically against the liberty of the individual is quite inadequate. It is simply because the police have said that they would like 14 days rather than seven days, and simply because they seem to have persuaded the Home Office.
	As Members of Parliament, surely we must be satisfied of the need for the provision. I have seen the evidence. The Minister was good enough to let me see it, but obviously I cannot pass that on to the House. However, I for one am not satisfied with the evidence on which the Government are relying. Of course terrorism is an ever-present danger and of course we must be for ever vigilant, but let us not become paranoid when the subject of terrorism is mentioned. Above all, let us not over-react. That is what we would be doing by allowing Clause 283 to stand part of the Bill. It represents an over-reaction, out of all proportion to the present danger from terrorism. I beg to move.

Lord Thomas of Gresford: My Lords, your Lordships will recall that in Committee I tabled an amendment to extend the seven-day period to 10 days but withdrew it on the basis that it was merely a very ineffective compromise. We have reflected further—we have, of course, borne in mind the powerful speech of my noble friend Lord Carlile of Berriew on the previous occasion—and have come to the conclusion that we will support the amendment of the noble and learned Lord, Lord Lloyd.
	In Committee, the noble and learned Lord asked whether there had been consultation with the district judges who overlook the processes. That theme was taken up by the noble Lord, Lord Clinton-Davies, and finally by me. I asked a series of specific questions and indicated that by the Report stage we would be in a far better position to judge what proper course we should take in the light of the views expressed to us by the Minister and the views of the district judges. I have not received a letter. I do not know whether the noble and learned Lord has. It certainly has not been copied to me and I do not know the result of that consultation.

Lord Lloyd of Berwick: My Lords, I very much regret that the noble Lord, Lord Thomas, has not had a copy of the letter. I have received a letter. It states in the last paragraph that the letter has been copied to myself and to the noble Lords, Lord Hunt, Lord Thomas, Lord Clinton-Davis and Lord Carlile. I am happy to hand the noble Lord my copy of the letter here and now. It will not help him very much.

Lord Thomas of Gresford: My Lords, it is not an unusual situation for someone to hand me a document while I am on my feet. I am informed from behind by those instructing me that it is a very long letter. Perhaps I should reserve further comment until I have read it.

Baroness Anelay of St Johns: My Lords, I rise briefly to express the views of my noble friend Lord Hunt of Wirral. He apologises that he has had to leave. As noble Lords are aware, we had anticipated finishing this business slightly earlier. I share my noble friend's views entirely and so I have no problem in relaying them.
	My noble friend makes the point that we share the Government's determination to deal effectively with the threat of terrorism. In Committee, we listened very carefully to all the views put forward. As a result, we have been persuaded by the arguments of the Minister, in part, and, in particular, by the arguments put forward in the very important contribution, as my noble friend puts it, of the noble Lord, Lord Carlile of Berriew, the statutory independent reviewer of the Terrorism Act 2000. We therefore do not support the amendment.

Baroness Scotland of Asthal: My Lords, I hope to help the noble Lord, Lord Thomas of Gresford, with my comments. I shall try not to repeat everything I said—I know that noble Lords will take that as given—and I do not resile from any of those comments.
	The noble and learned Lord, Lord Lloyd, is right. Amendment No. 238 would strike out the provision in its entirety from the Bill. It would keep at seven the maximum number of days that a terrorist suspect can be held in detention without charge while investigations continue. That would prevent the police having the long-term counter-terrorism provision they consider essential based on their experience of the practicalities of dealing with suspected criminals.
	I listened with great care to the recitation given quite properly by the noble and learned Lord of the difficulties of terrorism that we have faced over the past five years. However, the noble and learned Lord identified the issues upon which we then concentrated when dealing with the acts of terrorism which came primarily from the IRA campaign and which continued throughout that period. It is clear that we were not as successful as we would have liked because the deaths and injuries referred to by the noble and learned Lord occurred. I know the noble and learned Lord will agree that for the individuals and families concerned they were great tragedies indeed. We do not say that the provisions are not necessary to face that form of terrorism, but we abide by the statements we have made before about the need to go further.
	The last IRA bombing was in November 2001. Bombs exploded in Henley, Hammersmith, Shepherds Bush and Ealing. The terrorism we face is different. The bombs do not necessarily have to kill to have a serious effect on the life and economy of the country.
	There are no other incidents, as the noble and learned Lord, Lord Lloyd of Berwick, rightly said—and we will and do say that that is because the efforts of our security services have been successful. That does not prove that the additional issues are not necessary, because the security services are struggling against great odds. I almost wonder whether the noble and learned Lord is saying that, if we had had a slip between cup and lip and there had been a monstrous incident, we could now justify a further extension. We do not believe that there needs to be that slip between cup and lip before one understands, appreciates or does something about the fact that the ever-present danger has become heightened, graver and more difficult to deal with.
	I spoke on a previous occasion about the complexity of the cases, and I shall summarise them quickly. The complexity stems, among other things, from the retrieval and analysis of substances for searches. I hear what the noble Lord, Lord Thomas of Gresford, said about that, but, as your Lordships know, we do not agree. It stems, too, from the requisition and analysis of the hard drives of PCs, in particular, and from mobile phone use and swapping of techniques of whole phones and phone parts such as SIM cards. All those issues continue.
	There is a fundamental difference between investigation of international terrorism and investigation of suspects involved with terrorism related to the affairs of Northern Ireland. We know far less about those new people in general, and often know literally nothing on a specific basis when suspects are resident illegally in the United Kingdom. The situation is exacerbated when the case is composed of complex strands of investigation, such as those to which I have referred, making it difficult to complete an inquiry and gather sufficient evidence in the allotted time. But I emphasise again that there are few cases to which that would apply. Those cases will be serious and complex and will involve a combination of difficult and time-consuming investigative factors needed to provide sufficient evidence to proffer charges.
	Complex cases are also sophisticated cases, and the police investigation needs to be correspondingly more sophisticated and wide-ranging to analyse and cross-reference the evidence available. That is what creates a different investigative playing field and justifies the need to allow the police an extended period to put the information together when circumstances make that necessary.
	The last time that we discussed the matter, I undertook to ascertain from the members of the judiciary involved in the review and approval of extension of detention what those processes are and the level of scrutiny that they involve. I have received a response from the district judge concerned, Judge Timothy Workman, who is the senior district judge and chief magistrate at Bow Street Magistrates' Court, on behalf of his colleagues.
	It is right that I respond to the questions asked of me by the noble Lord, Lord Thomas of Gresford, so that we can share the information more widely. The learned judge, Timothy Workman, said that there are 12 judges in total who have been nominated by the noble and learned Lord the Lord Chancellor to undertake the work related to extensions of detention under the Terrorism Act 2000. Three of the 12 undertake the work only when there are problems in meeting demand, and are essentially reserve judges, thus retaining a small core of specialist and experienced judges.
	The hearings are conducted in private, at a court convenient to the holding police station, and hearings may be conducted by secure video link, when that facility exists. All suspects have the right to attend the hearing, and it is usual that they do so accompanied by their legal representatives. When that right is not exercised, the judge must satisfy himself that the defending lawyers have provided their clients with the statutory notice and grounds for the application being heard.
	The application for an extension of detention is made by a senior officer of at least superintendent rank, who submits a document setting out, first, the nature of the inquiry, secondly, the work undertaken and, thirdly, the work still to be undertaken. It also includes the need for the suspect to be detained, the estimated time of the continuing inquiries and, usually, details from the custody log relating to all events affecting the suspects' welfare, including meals, legal visits and medical examination.
	As part of the application process, the superintendent will probably be asked to augment the facts in the document. There is a process by which sensitive information can be heard in a protective environment when that is judged appropriate. After hearing the defence representations, the judge must decide whether he is satisfied that the terrorist investigation is being carried out diligently and expeditiously, and that there is a need for further detentions. If satisfied, the length of the continued detention is considered. Although it will depend on the individual case, Judge Tim Workman has indicated that the general principle has been to continue monitoring by requiring further applications after about 48 hours, at which point judges would expect to be provided with further information on why the detention should continue.
	I also asked the learned judge for his thoughts on the proposal in Clause 283 to extend the maximum period of detention without charge from seven to 14 days. He says clearly, if I may respectfully say so with propriety, that because the police have to justify their position to the judge only for periods up to the current maximum of seven days, and because there have been relatively few cases in which the full seven days has been allowed, he is not in a position to offer a specific opinion on the proposals in the amendment. I would not have expected him to say otherwise. However, that does not mean that the additional seven daysare unnecessary. The learned judge went on to comment that he has been made aware that the police have had difficulties in converting information and intelligence into evidence and that that has affected whether it has been possible to prefer charges.
	That is the very point that I have been trying to make in our debates. The police need the extra time in complex cases in order to obtain sufficient evidence that could result in an appropriate charge. That is what we seek to achieve.
	The statistics that I provided in the previous debate referred to cases that had gone to the current maximum of seven days. Those numbered 16 out of 212 in a 15-month period. Judge Workman expands that to information for up to the six-day period. He says that, since 1st October 2002, the courts had received notification of 226 arrests under the Act. Of those individuals, 128 applications for warrants of further detention were made, of which 42 were made the subject of extensions of six days and therefore the subject of two or three applications before the judge.
	I respectfully suggest that those statistics demonstrate the points that I have made previously; namely, that maximum detentions are used in very few cases and only where it can be of benefit to the investigation, and that there is scrutiny and monitoring because maximum extensions are not granted on a single application. The court is given the wherewithal to make a judicial determination as to whether expedition has been used with propriety and whether or not this is justified.
	Furthermore, there is no indication that the threat from terrorism will decrease in the coming years. Just because there has not been a major incident does not mean that there is no threat. So far, we have had good levels of detection and disruption, but those individuals whose activities have been disrupted need to be investigated before they can be charged and we return to the issue of the time available.
	Terrorism investigations, as I said, are unlike criminal investigations. Let us be in no doubt about that. I shall explain why that is the case. In drug trafficking or money laundering cases, for example, although we cannot be happy that a crime continues to be perpetuated, it can be strategically allowed to continue under strict surveillance in order for the police to build the maximum amount of evidence possible to achieve the best possible outcome in terms of the extent of arrests and prosecution. That is partly possible because for the end-user there is an element of volition. Although a drug-user may now be controlled by his condition, the initial forays into drug use will most likely have happened through choice. An individual who receives or knowingly operates with laundered money clearly does so by choice.
	The victim of a terrorist attack equally clearly has no choice. The police, on learning of potential terrorist activity, cannot risk waiting long to build a case. They have no choice but to act to disrupt and detain where that is pressing and then to work further on the prosecution issue. They may have some intelligence-led evidence already but it is essentially at the point of arrest that they can start to investigate thoroughly. Once again I say that this is a balanced judgment. We come down firmly on the basis of extension with the safeguards that I have just mentioned. I emphasise that detaining people, whatever they are suspected of, is a serious matter for a democracy and it is right that such a measure should receive scrutiny. However, at the same time I believe that we have no choice but to give serious consideration to what is being proposed.
	Your Lordships will have to decide on balance whether this limitation of liberty is proportionate and justified in a very small number of cases in relation to the potential damage the actions of suspected terrorists could have on our society. We believe that the balance goes in favour of making this extension which will be properly policed by the courts.

Lord Thomas of Gresford: My Lords, before the noble Baroness sits down, perhaps I can ask a question. The letter from Judge Workman sets out the answers to the question that I raised but it also raises another question regarding these hearings in the absence of the defendant and his lawyers. As the noble Baroness will remember, those were commented on at paragraph 105 of the report of the Joint Committee on Human Rights which pointed out that they could well breach Article 5.1 of the European Convention on Human Rights. The committee also pointed out that,
	"Unlike the position in proceedings before the Special Immigration Appeal Tribunal, there is no provision to appoint a special advocate to make submissions on undisclosed material to protect the detainee's interests".
	Does the Minister think that these provisions may possibly breach that article as the committee thought, and does she have any proposals to deal with that point?

Baroness Scotland of Asthal: My Lords, your Lordships will know that we do not believe that these proposals breach that article. We believe that the proposals expounded by me from the Dispatch Box and contained in documents responding to queries adequately set out why we believe that these provisions are compliant. I hope that when looking at the very careful way in which the proceedings are monitored by the court the noble Lord will agree with me that there is every opportunity to make sure that the interests of the accused person are fully taken on board and that they are properly represented and are heard. Indeed, if I may respectfully say so, I certainly found the detail impressive in that it contained all the species of information that I should have liked to see given to the court to enable it to make an informed judgment on whether the police were being as expeditious as they should properly be. That therefore explains why so few cases are given the extensions but also gives us confidence that the same judges will be as rigorous in monitoring any further extension as they have been in monitoring the seven-day period.

Lord Lloyd of Berwick: My Lords, as before, I am very grateful indeed for the very full reply given by the Minister. I note that she did not answer the point which I specifically asked about the 16 detainees all being detained in respect of a single operation, but perhaps that is not the most important point. If it is, then of course it undermines very much her argument that that is something which is happening all the time.

Lord Carlile of Berriew: My Lords, I am grateful to the noble and learned Lord. I simply rise to correct a misapprehension. The 16 detainees are not all detained in relation to a single incident. Indeed, quite a number of them were detained before that incident occurred.

Lord Lloyd of Berwick: My Lords, of course the noble Lord is right. I was given the figures this morning by the centre for terrorist research in St Andrews. I was given the figures of 11, four and one, which add up to 16—all related to that one ricin incident. But perhaps I am wrong.
	The noble Lord, Lord Thomas, is right that detention for 14 days is a gross breach of the European Convention on Human Rights. However, unfortunately, that does not help us, because in this respect we have derogated from the convention.
	The Minister rightly says that in the end it is a matter of balance and judgment. However, she gives far too little weight to the fact that somebody who has not yet been charged with any offence known to English law is being held for 14 days and made subject to continuous interrogation. That is not right. Having made that point, I do not wish to press the argument in a Division. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 304 [Section 302: interpretation]:

Baroness Scotland of Asthal: moved Amendment No. 238A:
	Page 172, line 17, leave out "Part 1 of the Sex Offenders Act 1997" and insert "Part 2 of the Sexual Offences Act 2003"
	On Question, amendment agreed to.
	Clause 305 [Criminal record certificates: amendments of Part 5 of Police Act 1997]:
	[Amendment No. 238AA not moved.]

Baroness Scotland of Asthal: moved Amendment No. 238AB:
	After Clause 305, insert the following new clause—
	"CIVIL PROCEEDINGS FOR TRESPASS TO THE PERSON BROUGHT BY OFFENDER
	(1) This section applies where—
	(a) a person ("the claimant") claims that another person ("the defendant") did an act amounting to trespass to the claimant's person, and
	(b) the claimant has been convicted of an imprisonable offence committed on the same occasion as that on which the act is alleged to have been done.
	(2) Civil proceedings relating to the claim may be brought only with the permission of the court.
	(3) The court may give permission for the proceedings to be brought only if there is evidence that either—
	(a) the condition in subsection (5) is not met, or
	(b) in all the circumstances, the defendant's act was grossly disproportionate.
	(4) If the court gives permission and the proceedings are brought, it is a defence for the defendant to prove both—
	(a) that the condition in subsection (5) is met, and
	(b) that, in all the circumstances, his act was not grossly disproportionate.
	(5) The condition referred to in subsection (3)(a) and (4)(a) is that the defendant did the act only because—
	(a) he believed that the claimant—
	(i) was about to commit an offence,
	(ii) was in the course of committing an offence, or
	(iii) had committed an offence immediately beforehand; and
	(b) he believed that the act was necessary to—
	(i) defend himself or another person,
	(ii) protect or recover property,
	(iii) prevent the commission or continuation of an offence, or
	(iv) apprehend, or secure the conviction, of the claimant after he had committed an offence;
	or was necessary to assist in achieving any of those things.
	(6) Subsection (4) is without prejudice to any other defence.
	(7) In this section—
	(a) the reference to trespass to the person is a reference to—
	(i) assault,
	(ii) battery, or
	(iii) false imprisonment;
	(b) references to a defendant's belief are to his honest belief, whether or not the belief was also reasonable;
	(c) "court" means the High Court or a county court; and
	(d) "imprisonable offence" means an offence which, in the case of a person aged 18 or over, is punishable by imprisonment."

Baroness Scotland of Asthal: My Lords, in moving this amendment, I shall speak also to Amendment No. 256, standing in my name, and Amendment No. 238AC, tabled by the noble Lords, Lord Thomas of Gresford and Lord Dholakia.
	Amendment No. 238AB would strengthen the civil law to improve protection for victims of crime against civil claims for damages by offenders. As noble Lords know, that issue was the subject of an opposition amendment in Committee. In responding to that amendment, my noble friend Lord Filkin indicated the Government's sympathy for the concerns raised by the Opposition in that area, but emphasised the importance of framing a clear and focused amendment that will genuinely strengthen courts' powers to reject unmeritorious claims. This amendment achieves those aims.
	The amendment applies where a claimant has been convicted of an imprisonable offence. If the claimant wishes to sue someone for damages for a trespass to the person, including an assault or a battery, which was committed on the same occasion as the offence, he or she must first obtain the court's permission for the claim to proceed. The court may give permission only if the offender can show that certain conditions, relating to the defendant's perceptions and reasons for committing the act, which amounted to trespass to the claimant's person, are not met, or that in all the circumstances the defendant's act was grossly disproportionate. If the court gives permission, the defendant will not be liable at the trial if he or she can prove that the relevant conditions relating to his or her perceptions and reasons for acting are met, and that in all the circumstances the action was not grossly disproportionate.
	As my noble friend Lord Filkin indicated, in drafting the amendment our thinking has been very much along the same lines as that of the Opposition in framing their earlier amendment. However, this amendment improves on that one in several ways—I hope that I can say that with a little modesty, because I did not draft it. It makes the procedure for the court to give preliminary consideration to the claim clearer by creating a formal permission stage. The need for permission will act as a filter to remove unmeritorious cases at an early stage without the defendant having to incur substantial costs.
	The amendment provides a clear and strong evidential test—stronger than the "interests of justice" test in the opposition amendment. That means that the defendant will be prevented from relying on the defence of self-defence only if his or her actions have been grossly disproportionate. At present, it is lost if the actions have merely been unreasonable.
	It makes clear that the other defences will continue to be available to the victim. For example, it will still be open to him or her to argue that the principle that a claim cannot be based on an illegal act applies. It benefits third parties who are not the direct victim of the offence, but who may have intervened to protect the victim or deter the criminal. It avoids the possible complexities of the opposition amendment relating to corporate bodies and proprietary interests. The courts are familiar with the concept of proportionality and the other issues which they will be required to consider. I am confident that they will be able to develop the law in a firm and sensible way. Amendment No. 256 amends the Long Title to cover the subject area of the amendment.
	Amendment No. 238AC, tabled in the names of the noble Lords, Lord Thomas of Gresford and Lord Dholakia, amends the new clause. It would require that when the court is considering the defendant's beliefs about the necessity of taking the action which amounted to trespass to the claimant's person and about the circumstances in which the action was taken, it must consider not only whether the beliefs were honestly held, but also whether they were reasonable.
	We do not believe that the amendment is appropriate. There is always the possibility that a vulnerable person may honestly believe that he is in danger, even though, considered objectively, the belief is not a reasonable one. We do not consider that this would deny him the protection of the clause. But that would be the effect of the noble Lords' amendment.
	The reasonableness of the defendant's actions will be addressed by the court in considering whether, in all the circumstances, what he did was grossly disproportionate. The amendment would also be confusing and could create practical difficulties. The court would have to consider at the same time both a subjective element—honesty—and an objective element—reasonableness. Therefore, the Government cannot accept the noble Lords' amendment.
	The clause tabled by the Government represents a real improvement in the protection given to the victims of crime and others who act on their behalf against unjustifiable claims. On mature reflection, I hope that the noble Lord, Lord Thomas of Gresford, will be persuaded not to move his amendment. I beg to move.

Lord Thomas of Gresford: moved, as an amendment to Amendment No. 238AB, Amendment No. 238AC:
	Line 41, leave out from "honest" to end of line 42 and insert "and reasonable belief"

Lord Thomas of Gresford: My Lords, I have heard the explanation given by the noble Baroness for allowing a person to have as a defence an unreasonable belief that the claimant was about to commit an offence. Mantraps were abolished in 1827. The proposed new clause seems to open up the possibility of a person having a defence because he unreasonably believed that his house was about to be attacked, mantraps were set in the garden, and that he had imprisoned someone who, under new subsection (1)(a) was trespassing, and, under new subsection (1)(b), had committed some other imprisonable offence at the same time.
	An unreasonable belief goes too far. It should be objectively justified if the defence is to succeed. After all, the proceedings would not begin unless the person bringing the proceedings had been injured in some way. I beg to move.

Baroness Anelay of St Johns: My Lords, I welcome the government amendment, which responds properly and generously to the points made by my right honourable friends in another place, both in Committee and on Report. There is a long history to this discussion. It has been our determination throughout that those who act honestly should be protected. Under this amendment, they would be protected only if they were acting proportionately. We believe that the government amendment achieves that. For that reason I do not support the amendment tabled by the noble Lord, Lord Thomas of Gresford. We are persuaded that where there is a vulnerable person, their honest belief should be sufficient to give them protection.
	I have one question for the Minister, which is not fatal to our support for their amendment. My noble friend Lord Hunt points out that when he moved his original amendment (at col. 1011 of the Official Report on 15th October 2003), it covered a victim who was a servant or agent of any person falling within the definition of his subsection (3). His question really was whether, when they drafted their amendment, the Government considered the position of someone who was a servant or an agent. If they did, are such people now covered in the amendment and, if not, why did the Government decide that they should not be brought within its scope? As I said, such an exclusion is not fatal to my support.

Baroness Scotland of Asthal: My Lords, we believe, as I think I said, that if someone goes to intervene or help, they would be covered by these provisions. I hope that that is clear. I know that I was speaking very rapidly to try and encompass the information as quickly as possible. When the noble Baroness looks at Hansard, I hope she will agree that those additional persons about whom she is concerned are covered.
	I should like to say a word in response to the noble Lord, Lord Thomas of Gresford. We believe that honest belief incorporates the element of proportionality so the court would be able to ensure that a proper balance in that regard is made. That is why we prefer our construct in terms of the way in which this should be addressed.

Lord Thomas of Gresford: My Lords, I am happy to reply regarding my amendment. The scenario I have in mind is of two people who go into somebody's property to have a fight. That is trespass—an imprisonable offence. The owner of the house believes honestly, but unreasonably, that it is an attack upon his property, takes a gun and shoots them. There is to be no redress for those people under the Minister's amendment. I do not think that is right, but I do not intend to press this. I beg leave to withdraw the amendment.

Amendment to Amendment No. 238AB, by leave, withdrawn.
	On Question, Amendment No. 238AB agreed to.
	Clause 306 [Orders and rules]:

Baroness Scotland of Asthal: moved Amendment No. 238B:
	Page 173, line 38, at end insert—
	"section (Early removal of prisoners liable to removal from United Kingdom),"
	On Question, amendment agreed to.
	Schedule 32 [Further minor and consequential amendments]:

Lord Bassam of Brighton: moved Amendments Nos. 239 to 241:
	Page 377, line 2, leave out paragraph 11.
	Page 378, line 20, at end insert—

"Crime (International Co-operation) Act 2003

16A After section 4 of the Crime (International Co-operation) Act 2003 there is inserted—
	"4A GENERAL REQUIREMENTS FOR SERVICE OF WRITTEN CHARGE OR REQUISITION
	(1) This section applies to the following documents issued for the purposes of criminal proceedings in England and Wales by a prosecutor—
	(a) a written charge (within the meaning of section 27 of the Criminal Justice Act 2003),
	(b) a requisition (within the meaning of that section).
	(2) The written charge or requisition may be issued in spite of the fact that the person on whom it is to be served is outside the United Kingdom.
	(3) Where the written charge or requisition is to be served outside the United Kingdom and the prosecutor believes that the person on whom it is to be served does not understand English, the written charge or requisition must be accompanied by a translation of it in an appropriate language.
	(4) A written charge or requisition served outside the United Kingdom must be accompanied by a notice giving any information required to be given by rules of court.
	(5) If a requisition is served outside the United Kingdom, no obligation under the law of England and Wales to comply with the requisition is imposed by virtue of the service.
	(6) Accordingly, failure to comply with the requisition is not a ground for issuing a warrant to secure the attendance of the person in question.
	(7) But the requisition may subsequently be served on the person in question in the United Kingdom (with the usual consequences for non-compliance).
	4B SERVICE OF WRITTEN CHARGE OR REQUISITION OTHERWISE THAN BY POST
	(1) A written charge or requisition to which section 4A applies may, instead of being served by post, be served on a person outside the United Kingdom in accordance with arrangements made by the Secretary of State.
	(2) But where the person is in a participating country, the written charge or requisition may be served in accordance with those arrangements only if one of the following conditions is met.
	(3) The conditions are—
	(a) that the correct address of the person is unknown,
	(b) that it has not been possible to serve the written charge or requisition by post,
	(c) that there are good reasons for thinking that service by post will not be effective or is inappropriate."" Page 386, line 21, leave out from beginning to "the" in line 22 and insert—
	"(1) Section 74 of the Police and Criminal Evidence Act 1984 (conviction as evidence of commission of offence) is amended as follows.
	(2) In subsection (1) (commission of offence by non-defendant) for the words from ", where to do so" to "committed that offence" there is substituted "that that person committed that offence, where evidence of his having done so is admissible".
	(3) In subsection (3) (commission of offence by defendant)"
	On Question, amendments agreed to.
	Schedule 33 [Repeals]:

Baroness Scotland of Asthal: moved Amendments Nos. 242 to 246C:
	Page 390, line 30, at end insert—

ALLOCATION AND SENDING OF OFFENCES

Short title and chapter Extent of repeal 
			 Bankers' Books Evidence Act 1879 (c. 11) In section 4, the paragraph beginning "Where the proceedings". 
			  In section 5, the paragraph beginning "Where the proceedings". 
			 Explosive Substances Act 1883 (c. 3) Section 6(3). 
			 Criminal Justice Act 1925 (c. 86) Section 49(2). 
			 Administration of Justice (Miscellaneous Provisions) Act 1933 (c. 36) In section 2(2), paragraphs (aa) to (ac), paragraphs (iA) and (iB), and the words from "and in paragraph (iA)" to the end. 
			 Criminal Justice Act 1948 (c. 58) Section 41(5A). 
			  In section 80, the definition of "Court of summary jurisdiction". 
			 Backing of Warrants (Republic of Ireland) Act 1965 (c. 45) In the Schedule, in paragraph 4, the words "and section 2 of the Poor Prisoners Defence Act 1930 (legal aid before examining justices)". 
			 Criminal Procedure (Attendance of Witnesses) Act 1965 (c. 69) Section 2(5). 
			 Criminal Justice Act 1967 (c. 80) In section 9(1), the words ", other than committal proceedings". 
			  In section 36(1), the definition of "committal proceedings". 
			 Criminal Appeal Act 1968 (c. 19) In section 9(2), the words from "section 41" to "either way offence". 
			 Theft Act 1968 (c. 60) Section 27(4A). 
			 Criminal Justice Act 1972 (c. 71) In section 46, subsections (1A) to (1C). 
			 Bail Act 1976 (c. 63) In section 3, subsections (8A) and (8B), and the subsection (10) inserted by paragraph 12(b) of Schedule 9 to the Criminal Justice and Public Order Act 1994. 
			  Section 5(6A)(a)(i). 
			 Interpretation Act 1978 (c. 30) In Schedule 1, in the definition of "Committed for trial", paragraph (a). 
			 Customs and Excise Management Act 1979 (c. 2) Section 147(2). 
			 Magistrates' Courts Act 1980 (c. 43) Sections 4 to 8, and the cross-heading preceding section 4. 
			  Section 24(1A) and (2). 
			  In section 25, subsections (3) to (8). 
			  In section 33(1), paragraph (b) and the word "and" immediately preceding it. 
			  Section 42. 
			  Section 97A. 
			  Section 103. 
			  Section 106. 
			  In section 128, in subsection (1)(b), the words "inquiring into or", and in each of subsections (1A)(a), (3A), (3C)(a) and (3E)(a), the word "5,". 
			  In section 130(1), the word "5,". 
			  Section 145(1)(f). 
			  In section 150(1), the definition of "committal proceedings". 
			  In section 155(2)(a), the words "8 (except subsection (9))". 
			  In Schedule 3, paragraph 2(a). 
			  In Schedule 5, paragraph 2. 
			 Criminal Attempts Act 1981 (c. 47) In section 2(2)(g), the words "or committed for trial". 
			 Supreme Court Act 1981 (c. 54) Section 76(5). 
			  Section 77(4). 
			  In section 81—  (a) in subsection (1)(a), the words "who has been committed in custody for appearance before the Crown Court or in relation to whose case a notice of transfer has been given under a relevant transfer provision or",  (b) subsection (1)(g)(i),  (c) subsection (7). 
			 Police and Criminal Evidence Act 1984 (c. 60) Section 62(10)(a)(i). 
			  In section 71, the paragraph beginning "Where the proceedings". 
			  Section 76(9). 
			  Section 78(3). 
			 Prosecution of Offences Act 1985 (c. 23) In section 16, subsections (1)(b), (2)(aa) and (12). 
			  In section 23A(1)(b), the words from "under" to "1998". 
			 Criminal Justice Act 1987 (c. 38) Sections 4 to 6. 
			  In section 11—  (a) subsection (2)(a),  (b) subsection (3),  (c) in subsection (7), the word "(3),",  (d) in subsection (8), the word "(3),",  (e) subsections (9) and (10),  (f) in subsection (11), paragraphs (a) and (d). 
			 Criminal Justice Act 1988 (c. 33) Section 23(5). 
			  Section 24(5). 
			  In section 26, the paragraph beginning "This section shall not apply". 
			  In section 27, the paragraph beginning "This section shall not apply". 
			  Section 30(4A). 
			  In section 40(1), the words "were disclosed to a magistrates' court inquiring into the offence as examining justices or". 
			  Section 41. 
			 Road Traffic Offenders Act 1988 (c. 53) Section 11(3A). Section 13(7). Section 16(6A). 
			  Section 20(8A). 
			 Criminal Justice Act 1991 (c. 53) Section 53. Schedule 6. 
			 Criminal Justice and Public Order Act 1994 (c. 33) Section 34(2)(a). Section 36(2)(a). 
			  Section 37(2)(a). 
			 Criminal Procedure and Investigations Act 1996 (c. 25) In section 1(2), paragraphs (a) to (c) and, in paragraph (cc), the words from "under" to the end. 
			  In section 5, subsections (2) and (3). 
			  In section 13(1), paragraphs (a) to (c) of the modified section 3(8). 
			  Section 28(1)(b). 
			  Section 68. 
			  Schedule 2. 
			 Crime and Disorder Act 1998 (c. 37) In section 50(1), the words "unless the accused falls to be dealt with under section 51 below". 
			  In Schedule 3, in paragraph 2, sub-paragraphs (4) and (5), paragraph 12, and in paragraph 13(2), the words from "unless" to the end. 
			 Youth Justice and Criminal Evidence Act 1999 (c. 23) Section 27(10). 
			  In section 42(3), paragraphs (a) and (b). 
			 Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) In section 89(2)(b), the words "trial or". In section 140(1)(b), the words "was committed to the Crown Court to be tried or dealt with or by which he". 
			  In Schedule 11, paragraph 9." 
		
	
	Page 391, leave out lines 23 and 24.
	Page 391, leave out lines 29 to 31.
	Page 391, line 34, column 2, leave out "7" and insert "11"
	Page 392, line 5, at end insert—
	
		
			 "Crime (International Co-operation) Act 2003 In section 9(4), the words "section 25 of the Criminal Justice Act 1988 or"." 
		
	
	Page 392, line 17, column 2, leave out from "it" to end of line 18. Page 393, column 2, leave out line 14 and insert—
	
		
			  "In section 234—  (a) in subsection (1), the words after paragraph (b),  (b) in subsection (3), the words from "or to vary" to "one hundred", and  (c) subsection (11)." 
		
	
	Page 393, leave out line 21.
	On Question, amendments agreed to.

Lord Archer of Sandwell: moved Amendment No. 247:
	Page 404, line 13, column 2, leave out "Section 42"

Lord Archer of Sandwell: My Lords, I had not previously participated in the debates on the Bill for reasons with which I will not weary your Lordships. Now I venture to intervene on what may appear a small point but it is a matter of principle and it can occasion real distress.
	I should apologise for not having raised this issue earlier in the Bill's proceedings but I was not able to attend at the relevant time. I hope your Lordships will forgive me.
	Most citizens are under an obligation to serve on a jury if required. A failure to respond without reasonable cause to a summons is an offence under Section 20 of the Juries Act 1974, punishable by a fine of £100 or, alternatively, as a criminal contempt. However, some citizens are ineligible. Some are disqualified from jury service and the categories are listed in Schedule 1 to the Juries Act 1974. Other categories are excusable as of right, if they so wish, and they, too, are listed in the schedule.
	A person who does not fall within those categories may apply for excusal for good reason, and the court may, in its discretion, excuse him under Section 9 of that Act.
	I was approached some years ago by members of the Exclusive Brethren, who believe that they are precluded by spiritual authority from serving on juries. They are not alone in that belief; other Christian groups share it. My noble friend Lord Brennan has asked me to say that he has been approached by members of certain contemplative orders who have a similar difficulty. Unhappily, he cannot be present, but had he been he tells me that he would have intervened.
	I should make it clear that I do not share that view, but that is not the issue. In this country, we recognise a right to abstain on grounds of conscience from what would otherwise be a duty, not because we agree with the objector, but because we respect a genuinely held belief. I would not argue that the right was absolute in all circumstances. We would need to take account of the mischief that would result from recognising the right. If recognition of abstention from jury service were likely to bring our criminal process to a standstill, that would have to be taken into account.
	However, numbers likely to claim exemption would be very small in proportion to the numbers eligible for jury service. Nor would there be a difficulty in testing whether someone were eligible. It is a simple matter to show whether an applicant for exemption is a sincere practitioner of the faith in question, and whether abstention from jury service is a doctrine held by that faith.
	It may assist my noble friend if I explain that the Exclusive Brethren are in a special position. Their objection to serving is based on the injunction against taking counsel with unbelievers, so a member who was compelled to serve on a jury would feel unable to discuss the case with the other jurors.
	Prior to 1994, those in question applied for discretionary excusal under Section 9 of the Act. On the rare occasions when the appropriate officer refused the application, an appeal to the judge usually secured the exemption. Not only do we pride ourselves as a nation on our tolerance and common sense—and perhaps, in these more enlightened days, on our respect for our human rights obligations—but every experienced criminal judge appreciates that a juror who is reluctant to serve, and who believes that he is precluded by his faith from discussing the case with other jurors, will not be conducive to the course of justice.
	However, there were rare occasions when an excusal was refused, and they gave rise to real distress. Whether they also gave rise to injustices, we will never know. The Minister may wish in an idle moment—if she is ever blessed with one—to read the report of ex parte Siderfin in volume two of the Queen's Bench reports for 1990 at page 683. The judge had refused an application for excusal and, in proceedings for judicial review, the court laid down two principles. One was that applications based on conscientious belief were serious matters and should be considered with great care. The other was that, although a religious objection should not be conclusive, the test was whether the belief would be likely to stand in the way of a juror's faithfully and properly performing the duties of a juror. If the Bill reaches the statute book in its present form, I assume that that will again be the position in law.
	The Royal Commission on Criminal Justice, chaired by Lord Runciman in 1993, made a clear recommendation in chapter 8, paragraph 57, that,
	"where practising members of a religious sect or order find jury service to be incompatible with their tenets or beliefs, that should entitle them to be excused jury service".
	I am aware that Lord Justice Auld more recently took a different view, apparently, as I read him, in the interests of neatness. However, when the Criminal Justice and Public Order Act 1994 reached the statute book, Section 42 amended Schedule 1 to the Juries Act by including in the schedule, among those entitled to excusal as of right, a practising member of a religious society or order the tenets or beliefs of which are incompatible with jury service.
	It seemed that the problem was resolved. If the provision has given rise to any difficulties, I have not heard of them. I have discussed the question with successive Ministers and with members of the legal profession. None of them has informed me of a single instance where the provision has been abused.
	However, it seems that the Government wish to simplify the provisions and to emphasise the inclusivity of juries. That is rather curious when, in the very same Bill, they propose to curtail the right to jury trial. Compassion is the price to be expended in return for neatness.
	Schedule 33 to the Bill, which lists the provisions to be repealed, includes the words: "Criminal Justice and Public Order Act 1994, Section 42". My amendment would remove that section from Schedule 33 and retain it on the statute book, thereby preserving tolerance, compassion and common sense.
	There was a moment when my right honourable friend the Home Secretary agreed that Section 42 should be saved, but even he has been subjected to a change of mind, by what process I know not. My noble friend the Minister has been good enough to write to me that there may be some crumb of comfort in store. I appreciate that she wrote to me so fully and carefully with so many demands crowding upon her—we have heard today of a number of letters that she has written in connection with the Bill. I await her reply, but I would do so with a lighter heart if my noble friend were not simply the messenger. Sadly, she does not rule the world. We can only hope that the Leviathans who bestride our world can stop to care about individual conscience and individual liberty. I beg to move.

Baroness Scotland of Asthal: My Lords, the pleasure of my noble and learned friend's company is such that no apology is ever needed for his participation in any debate. I am grateful to the noble and learned Lord, Lord Archer, for his amendment, because it gives me an opportunity to make absolutely plain the Government's position on the matter and to reassure my noble and learned friend that compassion for and sensitivity to religious beliefs are not only present, but are truly respected.
	We would fail in that duty if there were any suggestion that we were requiring people to undertake jury service against their beliefs. That is not the case. We have listened to the concerns that have been expressed. The approach that we are proposing provides safeguards which will ensure that, in terms of outcome, the new approach will achieve what we all agree is appropriate. That makes unnecessary any form of statutory exemption.
	I shall briefly set out the terms of those safeguards. During the debate on another aspect of the jury service provisions in Committee, I referred to the guidance which the Bill requires the Lord Chancellor to lay before Parliament on the jury central summoning bureau's exercise of its functions in relation to discretionary deferral and excusal. The guidance will give consistency, transparency and a structural underpinning to the discretionary system. As I explained to the noble Lord, Lord Hunt, in the course of that debate, the guidance is not yet ready. My noble and learned friend Lord Falconer is planning to issue a draft for consultation before the end of the year on which both he and I would warmly welcome your Lordships' views. We are agreed that it should state that an application for excusal from jury service on grounds of incompatibility with religious belief should always be granted. In other words, a person with theologically founded objections to jury service will never be forced to undertake it. I should make clear that this will include vowed members of religious orders who are currently ineligible for jury service as well as groups such as the Plymouth Brethren. I also assure noble Lords that the summoning bureau will aim to process any request for excusal on these grounds with the minimum of disruption to the applicant.
	I hesitate to say so, but that may be even better than that which went before. I hope therefore that I give not only little pleasure and comfort to my noble and learned friend but considerable satisfaction.

Lord Archer of Sandwell: My Lords, what is there left for me to say? I once participated in a philosophy seminar when the proposition under discussion was that you cannot expect to be disappointed because it entails that you did not expect to achieve your objective; and if you do not expect to achieve your objective, you cannot be disappointed when you do not achieve it.
	I am grateful to my noble friend for that full reply and for the serious core of hope which it includes. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.
	Clause 310 [Provision for Northern Ireland]:

Baroness Scotland of Asthal: moved Amendment No. 247A:
	Page 175, line 15, leave out "4, 6 to 9, 11 and 11" and insert "3(3), 4, 6 to 9 and 11"
	On Question, amendment agreed to.
	Clause 312 [Commencement]:

Baroness Scotland of Asthal: moved Amendment No. 247B:
	Page 176, line 5, after "313" insert ", (Channel Islands and Isle of Man)"

Baroness Scotland of Asthal: My Lords, in moving Amendment No. 247B, I shall speak also to Amendments Nos. 247C, 255, 251, 252, 253A and 254. Amendments Nos. 247B, 247C and 255 make provision for extending the sentencing provisions by Order in Council to the Channel Islands and the Isle of Man. The islands have been consulted and have agreed to the amendment.
	Amendments Nos. 251, 252, 253A and 254 are drafting improvements to the "Extent" clause and deal in particular with the extent of amendments to the various enactments dealing with the different armed forces. I beg to move.

Lord Monson: My Lords, I am grateful to the noble Baroness for pre-empting what I wanted to say. I merely wanted an assurance that these amendments would not in any way alter the relationship between the United Kingdom government and the self-governing territories of the Channel Islands or the Isle of Man. I am pleased to hear that that is not the case.

On Question, amendment agreed to.
	Clause 313 [Extent]:

Baroness Scotland of Asthal: moved Amendments Nos. 247C to 252:
	Page 176, line 23, after "section" insert "and to section (Channel Islands and Isle of Man)"
	Page 176, leave out line 27 and insert—
	"sections 67 and (Offences in connection with publication restrictions);" Page 176, line 29, at end insert—
	"section 270;" Page 176, line 42, leave out "269 and 270" and insert "and 269"
	Page 177, line 8, leave out "and 80" and insert "to (Application of Criminal Appeal Acts to proceedings under Part 9)"
	Page 177, line 11, at end insert—
	"section (Sentencing for firearms offences in Northern Ireland) and Schedule (Sentencing for firearms offences in Northern Ireland)" Page 177, line 15, at end insert—
	"(6A) The amendment or repeal of any enactment by any provision of—
	(a) Part 1,
	(b) section 263,
	(c) Part 2 of Schedule 3
	(d) Schedule 25,
	(e) Schedule 26,
	(f) Part 1 of Schedule 28,
	(g) Parts 1 to 4 and 6 of Schedule 32, and
	(h) Parts 1 to 3, 5 to 7, 9 and 11 of Schedule 33,
	extends to the part or parts of the United Kingdom to which the enactment extends." Page 177, line 16, leave out subsection (7).
	On Question, amendments agreed to.
	[Amendment No. 253 had been withdrawn from the Marshalled List.]

Baroness Scotland of Asthal: moved Amendments Nos. 253A and 254:
	Page 177, line 25, at end insert—
	"(10A) Any provision of this Act which—
	(a) relates to any enactment contained in—
	(i) the Army Act 1955 (3 & 4 Eliz. 2 c. 18),
	(ii) the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19),
	(iii) the Naval Discipline Act 1957 (c. 53),
	(iv) the Courts-Martial (Appeals) Act 1968 (c. 20),
	(v) the Armed Forces Act 1976 (c. 52),
	(vi) section 113 of the Police and Criminal Evidence Act 1984 (c. 60),
	(vii) the Reserve Forces Act 1996 (c. 14), or
	(viii) the Armed Forces Act 2001 (c. 19), and
	(b) is not itself contained in Schedule 23 or Part 8 of Schedule 33,
	has the same extent as the enactment to which it relates." Page 177, line 26, leave out subsection (11).
	On Question, amendments agreed to.

Baroness Scotland of Asthal: moved Amendment No. 255:
	After Clause 313, insert the following new clause—
	"CHANNEL ISLANDS AND ISLE OF MAN
	(1) Subject to subsections (2) and (3), Her Majesty may by Order in Council extend any provision of this Act, with such modifications as appear to Her Majesty in Council to be appropriate, to any of the Channel Islands or the Isle of Man.
	(2) Subsection (1) does not authorise the extension to any place of a provision of this Act so far as the provision amends an enactment that does not itself extend there and is not itself capable of being extended there in the exercise of a power conferred on Her Majesty in Council.
	(3) Subsection (1) does not apply in relation to any provision that extends to the Channel Islands or the Isle of Man by virtue of any of subsections (8) to (10A) of section 313.
	(4) Subsection (4) of section 306 applies to the power to make an Order in Council under subsection (1) as it applies to any power of the Secretary of State to make an order under this Act, but as if references in that subsection to the Minister making the instrument were references to Her Majesty in Council."
	On Question, amendment agreed to.
	In the Title:

Baroness Scotland of Asthal: moved Amendment No. 256:
	Line 4, after "1997;" insert "to make provision about civil proceedings brought by offenders;"
	On Question, amendment agreed to.

Health and Social Care (Community Health and Standards) Bill

Lord Warner: My Lords, I beg to move that the Bill be now further considered on Report.
	Moved, That the Bill be further considered on Report.—(Lord Warner.)

On Question, Motion agreed to.
	Clause 158 [Payment of NHS charges to hospitals or ambulance trusts]:

Lord Skelmersdale: moved Amendment No. 386:
	Page 78, line 14, leave out paragraph (b).

Lord Skelmersdale: My Lords, we now return to what the Minister described in Committee as,
	"not just a stealth tax".—[Official Report, 20/10/03; col. 1417.]
	I have been wanting to tease him about that for some time, but now is not the moment. Clause 158(3)(b) provides for regulations to establish who is to receive the money when the responsible body of the health authority or ambulance trust concerned has ceased to exist.
	It seems self-evident that the money, which is to come in very quickly—normally within 14 days of the certificate being issued—will be in time to be credited in the final accounts and usually to mitigate the debts of the NHS facility in question. I cannot imagine many cases where a credit balance appears on the closing accounts of a hospital, for example, or, indeed, an ambulance trust. I am sure that the regulations on that will make interesting reading to my noble friend Lady Noakes.
	However, putting that red herring to one side, that issue does not concern me at present. What do worry me are the last five words of the subsection. They read,
	"including provision modifying this Part".
	That surely means that none of the other order-making powers in this part are really necessary. If the final words of this subsection do not cover the whole of this part, as seems to be the case, what on earth are they doing there? If they mean what they say, are the regulations to amend any part of Part 3 covered by Clause 191(5)(c)? Noble Lords will remember that Clause 191(5)(c) concerns,
	" an order or regulations under this Act . . . which amends or repeals any part of the text of an Act",
	in terms of making incidental, supplementary, consequential, transitory, transitional or saving provisions. After all, the subject can hardly be covered by the noble Lord's new favourite word "minutiae". I beg to move.

Lord Warner: My Lords, it is always a pleasure to be able to extend the noble Lord's vocabulary. It might help if I explain the purpose of the subsection that the amendment would remove before turning to these points.
	Sometimes there can be quite a long period between an injury being suffered and treated and the compensation and associated NHS costs being paid by the compensator. During that time the NHS trust at which the treatment was received may have ceased to exist, generally due to merging with another to form a new separate NHS trust. Consequently the compensation recovery unit receives money from the compensator which it can no longer forward to the trust providing the treatment because that trust no longer exists.
	Clause 158(3)(b) allows regulations to be made to deal with that situation. Under the existing road traffic scheme these regulations specify that the recovered funds can be given to the NHS body to which the property rights and liabilities of the old NHS trust have been transferred. It is our intention that the regulations governing the extended scheme will make exactly the same provisions using the powers in Clause 158(3)(b). In that way we shall be able to ensure that every penny of recovered funds goes back to the NHS. Without that provision the compensation recovery unit would find itself unable to comply with Clause 158(1), which places an obligation to give recovered funds to the responsible body of the hospital that provided the treatment, because that responsible body would no longer exist.
	My understanding of the last five words about which the noble Lord is so concerned is that this was provided there and parliamentary counsel thought it was appropriate, but I am happy to give a more extended reply in writing if it would help the noble Lord.

Lord Skelmersdale: My Lords, I apologise if I have surprised the noble Lord by the way I introduced the amendment. I shall be delighted to receive one of his missives—he has written and circulated quite a few during the course of the Bill—as long as it is received promptly.
	The fact is that the Minister does not know the answer to my question but he will tell me in due course. On that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 160 [Liability of insurers]:

Lord Skelmersdale: moved Amendment No. 387:
	Page 79, line 25, leave out subsection (2).

Lord Skelmersdale: My Lords, Clause 160 on the liability of insurers makes it quite clear that liability imposed on the insurer as far as the duty to pay NHS charges is concerned is absolute. It cannot be excluded or restricted. That I found all very well until I re-read the whole clause together with the Explanatory Notes. Subsection (4) states that regulations may in prescribed cases limit the amount of the liability—the absolute liability to which I have just referred—imposed on the insurer by way of his duty to pay. The Explanatory Notes posit a case that that might be appropriate, for example, to enable a reduction in the NHS costs payable where an insurer has covered only a proportion of the total compensation as a result of the cap on the amount payable under the insurance policy.
	I simply cannot understand how these two subsections fit together. Either the duty is absolute, as I have said, or it is not. It cannot be both. The duty on the insurance company is twofold: first, to apply for a certificate and secondly to pay the amount requested within the 14 days, plus to pay any extra money requested in a supplementary certificate. As far as I can see, that is the limit of his liability to the Secretary of State and applies in every case where a successful claim for injury is made. Secondly, the company may not issue a restricted policy in this regard.
	I am totally confused and I hope that this time the Minister can satisfy me on what on earth is going on. I beg to move.

Lord Warner: My Lords, I hope to be able to elucidate. Clause 160(1) specifies that where a qualifying compensation payment is made and the insurance policy covers a person's liability in respect of the injury, the policy must be treated as also covering any liability to pay NHS costs.
	Clause 160(2), which the amendment would delete, ensures that the insurers' liability to pay NHS costs cannot be restricted or excluded. Without it, it would be possible for insurers to avoid covering the liability to pay NHS costs by limiting, or even excluding, NHS costs from the cover provided by the policy. It was not necessary to include provisions covering this in the Road Traffic (NHS Charges) Act 1999. That legislation specified the types of insurance policy that attracted NHS costs recovery.
	Under the extended scheme, many different kinds of insurance policies could attract NHS costs recovery—too many to specify on the face of the Bill. It was therefore necessary to make other provisions to ensure that insurers cannot avoid liability for NHS costs.
	As I explained during discussion of the clause in Committee, the majority of NHS costs will be recovered as a result of an insurance policy. There is no provision for the liability to pay NHS costs to be transferred to someone other than the person making the compensation payment. Thus, the amendment could vastly reduce the additional £150 million that we expect to be recovered. We think the risks attached to the amendment are far too serious. That is why the Government cannot accept it.

Lord Skelmersdale: My Lords, I was not expecting the amendment to be accepted; I was expecting an explanation of not only why but how all this would work. I well understand that these provisions were not in the Road Traffic (NHS Charges) Act. It was necessary to make provisions to ensure that there would be no avoidance of the payment of charges. I am still totally confused about the two differences, as it were, of liability. Perhaps I could respectfully suggest that the Minister has another go in another letter, or indeed in the same letter that he promised me on the previous amendment. If he can do that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 167 [Dental public health]:

Earl Howe: moved Amendment No. 388:
	Page 82, line 23, at end insert—
	"(6) Regulations made in respect of the matters set out in this section may not be made unless a draft of the regulations has been laid before and approved by a resolution of each House of Parliament.""

Earl Howe: My Lords, I have retabled this single amendment from those I tabled in Committee in a final attempt to persuade the Minister that the very substantial changes we are about to see in dental public health are such that Parliament should have a guaranteed debate about them when the regulations are introduced.
	In particular, we are all very conscious that the proposed dental public health duties of PCTs and local health boards take us into new territory. How NHS dentistry is remunerated and the shift of emphasis that this will bring—all being well—away from routine treatment and towards prevention is imaginative and exciting as a concept, but still vague in its detail.
	The key to its success will be the incentives that are offered to dentists to increase their productivity. The regulations, when they appear, will show us exactly what those incentives are. As the Minister knows, I admit to a worry that the available resources for dentistry will be inadequate to do all the very worthy things that the Government want done.
	If we are permitted a debate under the affirmative procedure, we shall at least have a chance, which we do not have today, to test the Government on the assumptions underpinning their plans. It would be helpful if between now and Third Reading the Minister were to agree to take away this issue and have another look at it. I hope that she will do so. I beg to move.

Baroness Andrews: My Lords, in Committee, I spoke at some length about the opportunities that the changes in dental health policy would bring. I tried to address the question of incentives in terms of the restructuring of pay for dentists and the encouragement that that would give for oral health and a more sensible approach to real dental needs. I shall not reiterate that. Of course the noble Earl is at one with us in welcoming the changes as a way of promoting and sustaining oral health as part of our strategy on reducing health inequality.
	Clause 167 inserts new Section 16CB into the 1977 Act. Subsection (1) provides for regulations to confer dental public health functions on PCTs. Indeed, we had a short debate in Committee on the capacity of PCTs. We intend the functions to include oral health promotion, school screening and plans to manage dental health services locally. I expect other functions to be added in due course. As I said then, because dental public health is a community-wide issue, PCTs may act jointly in discharging that function.
	I am also conscious that I shall have to repeat the response that I gave in Committee about why we intend to continue with negative regulations. The argument—which is powerful—is that it is consistent and in keeping with equivalent existing powers. It is fully appropriate given the matters to be legislated for. Indeed, no other regulations under the 1977 Act are subject to the affirmative resolution procedure.
	Before I turn to government Amendment No. 403 relating to dental charges regulations, they may be an exception to that. We have made that concession for positive reasons. I shall have something to say about that when I speak to the amendment.
	I can hardly conclude the debate without again citing the Select Committee on Delegated Legislation, which again made no recommendation for affirmative procedure for the regulation-making powers. I accept that the Opposition insist on affirmative regulations for this section; I hope that they will be persuaded that we have a case, for consistency, for the negative procedure.

Earl Howe: My Lords, as ever, I am grateful to the noble Baroness, but I am disappointed that she does not see the matter from our point of view. I shall not press it, but we seem to be heading for a set of major changes affecting the delivery of dental care in public health, which the other place, in particular, may never be able fully to debate. That worries me. However, I sense a brick wall when I hear one, so there is little more for me to say than to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 168 [General dental services contracts]:

Earl Howe: moved Amendment No. 389:
	Page 83, line 3, at end insert—
	"( ) The first regulations made under this section may not be made until a draft of the regulations has been laid before and approved by a resolution of each House of Parliament."

Earl Howe: My Lords, I move the amendment with a slightly greater sense of optimism in the light of the Minister's previous remarks. The amendment would require that the first regulations made under new Section 28K of the National Health Service Act 1977, as inserted by Clause 168, are subject to the affirmative procedure.
	In Committee, we had a useful exchange about the new general dental services contract—in particular, about how the financial mechanisms for payments to dentists and collection of NHS charges would work. My noble friend Lord Colwyn explained to the Committee how incredibly complex is the issue and the noble Baroness, Lady Andrews, told the Committee about the work in hand, which is still far from complete.
	We had all rather hoped to receive a comprehensive explanation of how the new system and incentives would work to ensure that the NHS received the income from charges that it was due—especially as it appears to be agreed that dentists will not be required to accept responsibility for that. However, it was clear from that debate that the Government are not sufficiently advanced to allow Parliament to consider how the scheme will work before the Bill is passed.
	It is important for Parliament to know how the new system is to be implemented. We clearly cannot delay the Bill until the Government reach a conclusion. Hence, my amendment requires the first regulations made under Section 28K to be subject to the affirmative procedure. I hope that the Minister will be receptive to that suggestion. I beg to move.

Baroness Andrews: My Lords, I shall start with the positive: yes, work is under way through the NHS Modernisation Agency's Options for Change field sites to test the new commissioning and remuneration models, among other innovations to improve NHS dental services. Indeed, the 20 field sites are looking at no fewer than 150 different practices. They are considering different ways of paying dentists' remuneration packages. Further, the teams will receive their existing spend from the GDS budget in exactly the same way as will practices from April 2005. We are intent on learning from this and the first complete field site draft contract templates will be made available in January of next year. They will have a two-year lifespan, going beyond April 2005.
	The point of outlining the background was to reiterate, as the noble Earl remarked, that this is very much a developing programme. We shall learn from and draw on that programme to ensure a smooth transition and the Department of Health will be working closely with the BDA and the NHS to develop a simple and robust base contract that all PCTs and practices will be able to put in place from April 2005.
	Under these arrangements, from April 2005, unless any local variations are agreed, the DPB and its successor body, the special health authority, will continue to pay dental practices contracting with PCTs broadly the same levels of income for broadly comparable levels of activity, increased by any nationally agreed uplifts following the recommendations of the DDRB.
	The noble Earl has asked again whether we see fit to provide affirmative regulations on this part of the Bill. Clause 168 provides for PCTs and local health boards to negotiate, subject to the regulations covering GDS contracts, the detailed terms of a general dental services contract with individual practices seeking to provide primary dental services under such a contract.
	The general dental services contract will replace the existing statutory arrangements for the provision of general dental services that are set out in the NHS GDS regulations, SI 1992/661. A general dental service contract is a contract for primary dental services, but it may also include services which are not primary dental services such as, for example, specialised services such as orthodontics, if that has been agreed with the commissioning PCT. Further, there is to be an obligation under a GDS contract to provide a specified range of routine dental care and treatment.
	The reason for going into the background is to make it clear that these equivalent provisions and their many amendments since 1992 have always been subject to the negative resolution procedure, in common with other provisions under the 1977 Act. We feel that the procedure has provided the necessary flexibility and has served the development of the provisions very well. Further, it appears that no other regulations made under the 1977 Act are subject to the affirmative resolution procedure.
	Amendment No. 389 seeks to amend new Section 28K, to be inserted into the 1977 Act by Clause 168, which provides for a PCT or local health board to enter into a general dental services contract. However, I should tell the noble Earl that new Section 28K provides no regulation-making power, and so I am afraid that the amendment is flawed. However, even if that were not the case, there is no reason to change the existing tried and tested arrangements for parliamentary scrutiny. We believe that they have served us well. In addition, no support was expressed by the Committee on Delegated Powers and Regulatory Reform for making such a change. I am sorry to disappoint the noble Earl yet again.

Earl Howe: My Lords, the Minister disappoints me in such a charming way that I do not know that I can come back at her with any force. She spoke of the need for flexibility as a reason for rejecting the affirmative procedure. Flexibility is often a good argument for retaining the negative procedure when the Government have to move quickly on something, but I do not think that it is a good reason when it is applied to something like this, where speed is clearly not of the essence.
	I am sorry that what I had hoped was a good halfway house between the Minister's position and ours does not find favour and that it will not break the regular rule of the negative procedure, except in the first instance when the regulations are introduced. Again, however, I do not see that I shall get much further at this point. I thank the Minister for her comprehensive reply, which was helpful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Warner: moved Amendment No. 390:
	Page 85, leave out lines 1 and 2.

Lord Warner: My Lords, in Committee I gave a commitment to bring forward amendments on Report which dealt with the response of the Delegated Powers and Regulatory Reform Committee and amendments tabled by noble Lords on the discretionary nature of the patient choice powers. These amendments, in a nutshell, provide that regulations must, rather than may, make provision concerning the rights of patients to choose from whom they receive their NHS dental or medical services.
	The regulations must also provide for the circumstances in which a person providing services under either a general medical services or a personal medical services contract must or may accept a patient, may decline to accept a patient and may terminate his responsibility for a patient.
	I indicated in Committee that it was our intention that the regulations would make clear a responsibility not to discriminate against patients in the process of registering and deregistering. The regulations would also require a reason to be given in writing to the patient as to why patients are removed from a practice list.
	At that time further discussions were taking place with the British Medical Association concerning the question of reasons for patients being refused inclusion on a list. I can now confirm that the regulations will also include provision that a contractor who refuses an application for inclusion in its list of patients should notify patients of the decision and the reason for it.
	During those discussions I also gave an assurance that there would be consultation on the regulations. The intention is to consult with patient representative groups on those aspects of the regulations relating to patient choice and patient registration which will be made under Section 28V(3) and the new subsection (5A). I hope that this process will begin in the very near future.
	I am sure that these amendments deal with the findings of the Delegated Powers and Regulatory Reform Committee. I am grateful for the support given by the Opposition Front Bench to Amendment No. 396. I beg to move.

Earl Howe: My Lords, in Committee, the Minister kindly gave an undertaking in the middle of the night or the very early morning, depending on one's perspective of our marathon committee day, and we were delighted to find our names in company with his on Amendment No. 396. We welcome the other amendments in the group.

On Question, amendment agreed to.

Lord Warner: moved Amendment No. 391:
	Page 85, line 13, at end insert—
	"(3A) Regulations under subsection (1) must make provision as to the right of patients to choose the persons from whom they are to receive services."
	On Question, amendment agreed to.
	Clause 170 [Provision of primary medical services]:
	[Amendment No. 392 not moved.]
	Clause 171 [General medical services contracts]:
	[Amendment No. 393 not moved.]

Baroness Barker: moved Amendment No. 394:
	Page 89, leave out lines 21 to 44.

Baroness Barker: My Lords, I return to a matter which was raised by my noble friend Lord Clement-Jones at an earlier stage of the Bill. It is one on which we on these Benches remain somewhat unconvinced by the Minister's reply then.
	The amendment concerns the GMS contract and the elements within it relating to prescriptions and the provision of drugs. It is an important statement of principle, as well as one of practice, that within a GMS contract general medical care providers should have the freedom to exercise clinical judgments over the range of treatments they seek to provide. That is as important as patient choice because patients, who are ultimately the recipients of those services, need not necessarily know when they sign up with a general practitioner that they may inadvertently or indirectly be signing up to a limited choice of provision.
	We on these Benches believe that the arbitrary national control of prescribing runs counter not only to good practice for GPs but to the philosophy in the Bill that a health service should be granted as much freedom and decision making as possible at local level. Put simply, GPs and other people working under GMS contracts should be in the best position to make such judgments. We do not see why there needs to be such continual manacling of such judgments as there is under the national controls set out in the clause. That is the reason for the amendment. I beg to move.

Lord Warner: My Lords, we do not believe that the measure is arbitrary at all. The amendment would remove a revision in the Bill for directions to be made that set out the drugs, medicines or other substances that may or may not be ordered for patients. It is essential that the Government retain the capacity to influence prescribing by general practitioners in a direct way through the new contracts, because there are circumstances in which expenditure on particular drugs or products will detract from the provision of other services or treatments with a higher priority.
	That is best exemplified by the action that the Government have taken with regard to the provision of impotence treatments on NHS prescription. It is estimated that around 2 million men in the United Kingdom suffer from complete impotence and a further 8 million are thought to be partially affected—10 million in all. There are no objective means of diagnosis, so the condition is largely self-diagnosed. In the absence of the current restricted prescribing regime, we estimate that tens of millions of pounds of scarce resources could be diverted from treating other conditions such as cancer and mental health. That is not a situation that we as a government could possibly countenance.
	Therefore, by way of reiteration, the Government are of the firm belief that the powers being taken are a necessary component, alongside the work of bodies such as the National Institute for Clinical Excellence, to ensure the most effective use of the resources made available to the NHS. Therefore, we cannot accept the amendment.

Baroness Barker: My Lords, like the noble Earl, Lord Howe, I can hear the sound of a brick wall when I see one.
	I am not surprised by the Minister's response, but I believe that he is somewhat off the mark with his remarks about NICE because the requirements on providers to follow NICE guidelines are not as robust as we on these Benches would like them to be.
	The Minister mentioned drugs that are sometimes referred to as "lifestyle" drugs. People at a local level are best placed to see medicine management and control throughout their practice and the area. One of the reasons why we advocated the approach in the amendment was because medicine management should not be done by a particular provision. Provision of one drug could lead to a decrease in demand for others.
	We remain of a different view on the matter but, in view of the hour, I shall not press the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Andrews: moved Amendments Nos. 395 and 396:
	Page 90, leave out lines 11 and 12.
	Page 90, line 21, leave out "may" and insert "must"
	On Question, amendments agreed to.

Earl Howe: moved Amendment No. 397:
	Page 90, line 31, leave out "suspending or terminating" and insert "as to the suspension or termination of"

Earl Howe: My Lords, in Committee the Minister very helpfully explained the background to new Section 28V(4)(b) which provides for the suspension or termination of any duty under the GMS contract. He also set out the intended effect of this provision in relation to individual services, and I was grateful for that. He did not, however, settle the doubts that I still have about the drafting. The subsection states:
	"Regulations under subsection (2)(e) may . . . make provision suspending or terminating any duty under the contract to provide services of a prescribed description".
	I do not think that that is quite what it should be saying if we take the construction of those words literally. The regulations, when they come, will not actually suspend or terminate a duty under the contract to provide services, it seems to me; they will allow individual GMS practices to opt out of particular duties, which is a different thing. Those who do not opt out will surely still have to provide the services in question. So I am concerned that this blanket provision may not be quite right.
	I do not want to labour what is obviously a technical point. If the Minister can assure me that it has been looked at I will gladly withdraw the amendment. I beg to move.

Lord Warner: My Lords, I am pleased to tell the noble Earl that we have consulted parliamentary counsel and we believe his amendment is a suitable form of words. So I am very pleased to be able to accept his amendment. I would suggest that there is a new career opportunity opening up for him here.

Earl Howe: This is indeed a joyous day, my Lords. I thank the Minister for his trouble in taking away what by the standard of this Bill was a minor concern and for responding so positively.

On Question, amendment agreed to.

Lord Warner: moved Amendment No. 398:
	Page 90, line 35, at end insert—
	"(5A) Regulations under subsection (1) must make provision as to the right of patients to choose the persons from whom they are to receive services."
	On Question, amendment agreed to.
	Clause 173 [Arrangements under section 28C of the 1977 Act]:

Lord Warner: moved Amendments Nos. 399 and 400:
	Page 93, leave out lines 1 to 8.
	Page 93, line 34, at end insert—
	"( ) In that section, after subsection (3D) (as inserted by subsection (10) above) insert—
	"(3E) The regulations must provide for the circumstances in which a person providing primary medical services under section 28C arrangements—
	(a) must or may accept a person as a patient to whom such services are so provided;
	(b) may decline to accept a person as such a patient;
	(c) may terminate his responsibility for a patient.
	(3F) The regulations must make provision as to the right of patients to choose the persons from whom they are to receive services under section 28C arrangements.""
	On Question, amendments agreed to.

Earl Howe: moved Amendment No. 401:
	After Clause 177, insert the following new clause—
	"SPECIAL HEALTH AUTHORITY FOR DENTAL FUNCTIONS
	If the Secretary of State makes an order under section 11 of the 1977 Act setting up a Special Health Authority to assume functions relating to the provision of dental services under the 1977 Act as amended, the order shall not have effect unless a draft of the order has been laid before and approved by each House of Parliament."

Earl Howe: My Lords, I realise that I shall be accused of sounding like a cracked record—on reflection, I had better withdraw the word cracked. However, I hope that the Minister will forgive me for returning to an issue that I believe we ought to look at again relating to the proposed abolition of the Dental Practice Board and its replacement with a special health authority.
	The Minister provided us in Committee with a very helpful exposition of why the Government have decided to adopt this course. I was grateful to her for that. I now have a much clearer idea of the timetable for the transfer of the DPB's functions and of the transitional arrangements. I took the Minister's point that it would not be appropriate to have a debate in Parliament about the functions of the Dental Practice Board at the moment when the board was about to be abolished. What concerns Parliament more are the successor arrangements, some of which, as she explained, are likely to be put in place long before the actual abolition of the board. These changes are important; they are not straightforward, and they have to be got right.
	I therefore think that the Government ought to reconsider the merits of the affirmative procedure, not as regards the DPB which we accept is destined to disappear, but as regards the successor body. Parliament ought to be guaranteed the ability to scrutinise the detail of what is being proposed for the SHA and to debate it. The other place has not done so. We have done so only in a cursory fashion, without disrespect to the Minister's helpful remarks last time.
	So I put it to the Minister that there is a strong case for allowing Parliament to examine the transfer of functions, the interrelationship between the SHA and the PCTs and in general the key elements of the changeover that will determine its success. I hope that the Minister will be receptive to this revised suggestion of mine. I beg to move.

Baroness Andrews: My Lords, I am afraid that the moment of joy was very temporary and that we are back to the brick wall, but with some different arguments.
	I shall not reiterate the exposition I gave in Committee except to return briefly to the bullet points. We said that the Dental Practice Board had outlived its functions as it is too restrictive. A new special health authority is necessary to confer additional flexibility and to take on additional NHS functions some of which in the future might not even relate to general dental services because of the terms of the primary legislation. If we kept the old Dental Practice Board, it would be increasingly difficult to match the capacity of the organisation to its appropriate functions and would not make best use of its staff.
	Clause 177 therefore provides for the abolition of the DPB and for the creation of a special health authority under Section 11 of the 1977 Act by the Secretary of State and the Welsh Assembly as it will be a cross-border organisation. As an SHA it will be capable of undertaking functions in relation to the NHS conferred on it by directions of the Secretary of State or the Assembly. As the noble Earl said, it will have a very important role, not least in the transitional period, because the DPB has such a good reputation for paying dentists correctly and on time. The profession draws confidence from that. We are extremely intent on maintaining that confidence during the transitional period, during which time responsibility for pay will transfer to the PCTs and the SHA will become the payment agent, acting on their behalf.
	The first thing I want to say is that we are very aware of the need for public consultation on that matter. One of the reasons we do not consider that the affirmative procedure is necessary is because we are discussing how best to achieve that proper transfer with all the relevant stakeholders. There will be full public consultation over the transfer. Indeed, Section 11 of the 1977 Act requires the Secretary of State, before he makes an order, to consult with such bodies that he may recognise as representing those who in his opinion are likely to be transferred or affected by transfers as a result of the order. That is a very serious undertaking because the transfer to local contracting will make it important not least to ensure that the correct charges have been calculated and collected. We are very keen that the consultation is serious and proper.
	In addition to a payment function, the new special health authority will undertake monitoring and quality assurance in relation to the new primary dental services regime. That is a very significant and important enhancement of its current work. We shall consider such matters carefully. Under Section 11 of the 1977 Act, the assets, liabilities and staff—subject to consultation—of the DPB will be transferred during 2005 to the new SHA. Its successor special health authority will need to be established before the DPB is abolished.
	The noble Earl wants to make the establishment order of the new SHA the subject of debate in both Houses. My second reason for being reluctant to accept the measure is that there is no precedent for special health authorities to be subject to affirmative order. Indeed, there is no requirement in the 1977 Act for any other special health authority to be subject to the affirmative procedure. To put it bleakly, there is no reason why this SHA should be treated any differently. I hope that with those assurances the noble Earl will be able to bear his disappointment.

Earl Howe: My Lords, I think that the brick wall is growing higher by the minute. Part of my concern is that it is all too easy for a government to set up an SHA without too many formalities. It is a very easy procedure. There are complexities involved here which I felt warranted an exception to the normal rule. However, I take the noble Baroness's point about full public consultation. That is an important factor in the equation and I do not belittle it. I hope that it will serve to iron out any residual concerns that there may be. No doubt the Government will in their usual way take any such concerns into account. I can just about bear my disappointment on this occasion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 179 [Charges for dental services]:

Lord Skelmersdale: moved Amendment No. 402:
	Page 96, line 36, at end insert—
	"( ) Regulations under subsection (1) may not be made unless a draft of the regulations has been laid before and approved by a resolution of each House of Parliament."

Lord Skelmersdale: My Lords, in moving this amendment, I shall speak also to government Amendment No. 403 and Amendment No. 410 in our name. The first and the last amendments in this group constitute a belt-and-braces approach and would make the regulations under Clause 191 affirmative.
	In Committee, the noble Baroness, Lady Andrews, was good enough to say—twice, I might add, after a bit of teasing—that the Government would look again at whether the new Schedule 12ZA to the 1977 Act, which covers exemptions to dental charging, should be subject to revision by negative or affirmative instrument. The purpose of the amendments is to elicit the results of such looking again.
	Those results are to be found in Amendment No. 403, in the Government's name. But, if there is any logic in the Government's position, the proposed "looking" would have been more favourable than Amendment No. 403 provides. The Government have already conceded to the view of the Select Committee on Delegated Powers and Regulatory Reform that another set of exemptions—namely, that of exemptions to liability to pay NHS charges under Part 3—should always be made by affirmative instrument, not only the first time, as in Amendment No. 403, but whenever changes are made. There is no difference in principle; either both sets of exemptions should always be by affirmative procedure or neither should. I beg to move.

Baroness Andrews: My Lords, I was going to begin my response to the amendment with that wonderful line from "A Midsummer-Night's Dream", "O lovely wall", as Pyramus and Thisby approach the chink in the wall.
	I was hoping to give total satisfaction, but, clearly, I will not be able to. In Committee, I gave a commitment to look again at the level of parliamentary scrutiny afforded to the regulations under Clause 179. I understood that there was concern that Parliament had not been given sufficient detail on how the dental charging regime would work under new primary dental services. I referred to the review group on patient charges, led by Harry Cayton, and the fact that it had not yet finished and reported on its work—that is why we were sympathetic.
	We have looked again at the dental charging regulations, which have always been subject to the negative resolution procedure in the past. We have concluded that it would be reasonable for the first set of regulations, in which it is intended to set out the new basis on which dental charges are to be calculated, to be subject to a debate in both Houses. Subsequent sets would revert to the negative resolution procedure. That would give Parliament the opportunity to debate the initial changes proposed to the charging system but would ensure a proper balance and that parliamentary time is not taken up unnecessarily when the regulations are periodically amended, probably annually, to adjust the amount of patient charges—for instance, to keep charges in line with inflation.
	The Government's amendment, Amendment No. 403, is to Clause 179 rather than Clause 191, as the noble Earl, Lord Howe, proposes in Amendment No. 410. That is because Clause 179 inserts new provisions relating to dental charging into the 1977 Act. Amendment No. 403, therefore, provides for amendment to Section 126 of the 1977 Act, which contains provisions relating to the exercise of regulation and order-making powers under that Act. On the other hand, Clause 191 contains provisions relating to regulations or orders under, or conferred by, the Bill. On those grounds, we cannot accept Amendment No. 410. However, I appreciate that it is a belt-and-braces approach, because Amendment No. 402 also seeks to make regulations made under new Section 79 always subject to the affirmative procedure. However, our problem with that is that the equivalent provisions—the National Health Service dental charges regulations—have always been subject to negative resolution procedure, as I said, in common with other provisions in the 1977 Act. It seems unnecessary to change that in relation to new Section 79, which is why I reject it.
	The noble Lord was kind enough to give me warning of the other points he raised and I have sought advice on them. Exemptions from dental charges are set out in Schedule 12ZA, paragraph 1 and they are precisely the same as those in the current 1977 Act. Therefore, regulation is not required. Indeed, further primary legislation would be necessary to amend charge-exempt groups. As I said in Committee, we have no intention of changing the exemptions. Therefore, under new Section 79(1), dental charges regulations have no bearing on exemption charges. We are not guilty of inconsistency; there is simply a difference in governance.
	Finally, for further background, remissions from charges covered by the low income scheme for help with health costs are not covered by regulations made under Section 79. That is just additional information, which I hope that the noble Lord will accept. If he would prefer to have that spelt out, I am happy to add it to the letter which he will receive.

Lord Skelmersdale: My Lords, I am grateful to the noble Baroness. As I said in Committee, I am delighted that the noble Baroness accepts that, because of the changes in new Section 79(1), (2) and (3) of the 1977 Act, the first time round the regulations should be subject to the affirmative resolution procedure. We have no argument with that.
	As I explained to the noble Baroness both privately before the debate and just now, my worry is that part of this is Schedule 12ZA to the 1977 Act, which refers to exemptions. I must say that the noble Baroness gave me the most surprising answer that I have heard for some time when she said that primary legislation would be needed to alter those exemptions under paragraph 1 of new Schedule 12ZA. But I have been referring—both in Committee and on Report—to the fact that there is the opportunity, under Clause 191, to amend any part of the Act by regulation. Of course, that regulation must be affirmative.
	Does that cover alterations, which may be made 20 years in the future? I have no idea. Alternatively, alterations could be made within the next year or so. Again, I have no idea. Nor, I suspect, does the noble Baroness. To be told that primary legislation is needed to change Schedule 12ZA fills me with amazement.
	In due course, I shall be happy to accept government Amendment No. 403 if it is correct. Perhaps I may ask the noble Baroness not to move the government amendment tonight, but to double check and come back on it. If there is no change, I would be delighted to accept it on Third Reading. Unfortunately, under the rules of the House, I am unable to amend it at Third Reading if that is what I should like to do.

Baroness Andrews: My Lords, there is a sense of mutual surprise across the Chamber now. My inclination would be to move the amendment and to write to the noble Lord about the concerns he has raised about consistency between the regulations. I am sure that Amendment No. 403 is correct and that we can rely on our officials to achieve that purpose. I hope that he will be satisfied for me to write to him because I shall continue to move the amendment.

Lord Skelmersdale: My Lords, the noble Baroness puts me in a very difficult position. We had no intention of asking your Lordships to agree or disagree to anything in the closing stages of this Report stage, and I am bound by a commitment that was given. Under any other circumstances, of course, I would seek to divide the House on this matter.
	Given that I am going half way to meeting the noble Baroness, perhaps she can go half way to meeting me. She has not lost anything, except a week—the Bill will still get on to the statute book, with the amendment she proposes. I am simply asking whether the amendment is totally and utterly correct. She has the opportunity of double checking if she reserves government Amendment No. 403 for Third Reading.

Baroness Andrews: My Lords, my advice is that Clause 191 is about regulations made under this Bill. Section 79 is a 1977 Act provision—Clause 191 is not, therefore, relevant. We cannot, under Clause 196, make amendments using powers in this Act to amend Schedule 12ZA. That is a technical explanation. I urge the noble Lord to accept that we will move the amendment, and I will write to him. If we are wrong, we can seek to make amends.

Lord Skelmersdale: My Lords, I am well aware that Amendments Nos. 402 and 410 are not totally correct. Therefore, I intend to withdraw my amendment.
	As far as the government Amendment No. 403 is concerned, I am put in the position of having to accept it. Perhaps the House feels that I have put myself in this position; the noble Lord, Lord Warner, certainly thinks so because he is nodding. However, I have to say, I do it with a very heavy heart. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Andrews: moved Amendment No. 403:
	Page 98, line 30, at end insert—
	"(2A) In section 126 of that Act—
	(a) in subsection (1), after "PCT order" insert "or an instrument to which subsection (1A) applies";
	(b) after subsection (1) insert—
	"(1A) The Secretary of State may not make a statutory instrument containing the first regulations made under section 79(1) above (as substituted by the Health and Social Care (Community Health and Standards) Act 2003) unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament."
	On Question, amendment agreed to.
	Clause 181 [Replacement of the Welfare Food Schemes: Great Britain]:

Baroness Barker: moved Amendment No. 403A:
	Page 99, line 9, after "may" insert ", having conducted pilot schemes involving full consultation and independently audited evaluation"

Baroness Barker: My Lords, we come to a raft of amendments on this clause. Buoyed up by the victory of the noble Earl, Lord Howe, a couple of groups ago, I go in to bat with a hope of success, not least because the noble Lord, Lord Warner, in his letter to noble Lords of 4th November, indicated in some detail that we are very close to agreement on a number of matters to do with welfare food. Therefore, these amendments are tabled in the hope of closing what I believe to be a very narrow gap.
	In the noble Lord's letter, he quoted the noble Baroness, Lady Andrews, on the phasing in and testing of the new scheme. Amendment No. 403A refers to conducting pilot schemes, involving people in consultation and having independent audit and evaluation. I believe there is a distinct difference. I fully accept that the very concise and precise way in which all these amendments are drafted stems in part from the great disquiet about the way in which these provisions were originally drafted. None the less, I do not think that our amendment is a semantic difference. We are talking about important healthcare provisions for very small children and infants. What is being talked about is a big change, and it is described in fairly loose terms throughout the Bill. It is therefore important that we should seek to pilot it in a small-scale way and subject it to quite rigorous evaluation before it is rolled out. That is qualitatively different from the phasing-in of a scheme. I beg to move.

Earl Howe: My Lords, the noble Baroness has again made a powerful case for pilot schemes to precede the full roll-out of a replacement for the Welfare Food Scheme. I share many of the concerns that have led to her call for pilot schemes.
	Our concerns on the proposed new scheme are several and, if I may without speaking for too long, I shall summarise them. The first is that we are abandoning a scheme that has acknowledged nutritional value for one that may not deliver equivalent nutritional value in future. It will be difficult to ensure that the new scheme will result in mothers and young children receiving sufficiently nutritious food. The second concern is that we have not seen any details of how the scheme will work in practice, including how the vouchers will work to differentiate between different kinds of food.
	Thirdly, the overwhelming finding from the Healthy Start consultation was that alternative nutrition would need a value higher than the current value of the milk-based scheme. However, the Government have said that they intend to stick with the current annual cost of around £140 million. Lastly, the new scheme will be open to abuse, and we have no details of how it will be monitored or policed. We also have concerns about the knock-on impact on the milk distribution sector. If doorstep milk deliveries decline as a result of changes in the scheme, the harm could spread to other vulnerable groups, especially elderly people. The Government simply do not have an answer to that.
	We recognise that pilots, especially those that are fully evaluated as Amendment No. 403A calls for, can take a long time. We can see that the Government will want to press ahead once they have sorted out the huge number of details left. That is one reason why our Amendment No. 404 requires that the scheme be subject to affirmative regulations.
	In Committee, the noble Baroness, Lady Andrews, tried to convince us that to reduce the parliamentary scrutiny for the Welfare Food Scheme was necessary in order to be able to rush through new ideas on nutrition. We simply do not buy that, and can see no reason for parliamentary scrutiny of the new scheme to be less than is currently the case.
	Given that the Government have given us so little information about how the scheme will work in practice and how the potential pitfalls will be avoided, I put it to the Minister that she ought to welcome the opportunity to debate the details with Parliament when the new scheme is ready to be implemented. If she will not accept my amendment—I suspect from her answers this evening that she may not—will she at least consider making the first regulations under the scheme subject to the affirmative procedure?

Baroness Andrews: My Lords, we wrote in response to the debate in Committee on 5th November and offered more detailed information about our intentions in respect of aspects of reforming the Welfare Food Scheme. We gave some information about our plans for rolling out, testing and evaluating the reformed scheme. We gave information about the type, value and distribution of the new voucher, and about our strategy for communicating with families. I hope that the letter has provided a clearer and fuller picture of how the new scheme will work.
	I turn first to Amendment No. 404, which would require all regulations made under subsection (1) of Clause 181 to be subject to the affirmative resolution procedure.
	I have spoken about the need for the reformed scheme to be as flexible as possible and to be able to respond to changes in nutritional advice, operational need and to the needs of beneficiaries. It must be informed by expert advice and by the proper consultation of those affected. I have referred to the consultation process that we have just carried out. We had a positive response to the scheme and to what we intend to do.
	However, we have listened. The noble Earl expressed concern about "abandoning" the tried and tested scheme. I would say rather that we are building on the tried and tested scheme. I said in Committee that we appreciated the difficulties of debating a scheme which is in development, which is dynamic, and which builds on and reflects consultation in a formative rather than a merely retrospective way. I readily accept the concerns expressed about the setting up of a new scheme in the wake of one which has undergone little change in 63 years. It is remarkable for that reason. It is truly unique. I therefore propose to look again at the level of parliamentary scrutiny of the welfare food regulations and to come forward with an amendment at Third Reading that would make the first set of regulations subject to the affirmative procedure and subsequent sets negative. We are pleased to facilitate that debate. I therefore hope that the noble Earl will see fit to withdraw his amendment.
	On Amendment No. 403A, I believe that I said at Second Reading that we want to get it right. We do not want to cause any difficulty or confusion to beneficiaries, who are vulnerable and who rely heavily on the scheme to supplement their nutritional needs. We are making the changes because we want to do more on their behalf and to use the health service registration process to achieve that. We intend seriously to test and to phase in the scheme and to pilot elements of it.
	Amendment No. 403A would make it a requirement for pilot schemes to be set up before regulations could establish the new Welfare Food Scheme. Such a requirement would apply to all operational changes in the future, however minor, as much as to substantial change at the outset. I have said that we need to consult fully on draft regulations. We also intend our consultation to encompass arrangements for testing and phasing in the reformed scheme.
	I have assured the House of my undertaking to make the first set of welfare food regulations affirmative. I hope that the Noble Earl will finally be pleased with something that we have done this evening.

Baroness Barker: My Lords, the noble Earl appears to be ecstatic. I am not quite so overjoyed. I still question whether seriously testing and phasing in is tantamount to a pilot scheme. I suspect that we are separated not so much by a brick wall as by a small fence. I will look with interest at what the department brings forward, particularly in regard to evaluation within the regulations. That appears to be the point over which we have the greatest concern.

Baroness Andrews: My Lords, nobody could be more serious about proper evaluation than I am. The evaluation procedure is bound to be robust because it will grow out of the consultation process itself.

Baroness Barker: My Lords, the Minister is as convincing as ever on the subject of evaluation. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Barker: moved Amendment No. 403B:
	Page 99, line 13, at end insert "and particularly infants up to the age of one year"

Baroness Barker: I should have declared an interest for this part of the debate. I am of an age not only to have been brought up on formula milk, but also to have had free school milk before it disappeared.
	The amendment states the importance not only of the encouragement of breast-feeding, which we know is not nearly widespread enough, but also of maintaining the presence of infant formula where breast-feeding is for one reason or another not adopted.
	Infants require special protection and therefore the maintenance of infant formula is important. I accept the Government's argument about the need to move to a wider range of healthy diets, but at a previous stage we seemed to be in danger of going too far down that track.
	Noble Lords may remember the tragic case a few months ago of the small baby who died because her young parents did not understand that infants cannot take an adult diet. These amendments attempt to focus back on that and to place the scheme's emphasis on infants. I beg to move.

Baroness Andrews: My Lords, I welcome the opportunity to discuss these aspects of the scheme with the noble Baroness. We have made it clear that our intention is to reform the current Welfare Food Scheme in order to make better use of resources to meet the needs of beneficiaries. We have said that the reforms must be achieved within current resources; broadly, £142 million per annum for Great Britain as a whole.
	It is worth pointing out to the House that the panel on child and maternal nutrition of the Committee on the Medical Aspects of Food and Nutrition Policy, which reviewed the current scheme in 1999 and informed what we are doing, expressed the firm view that the scheme could be greatly improved without additional cost. That is a significant finding.
	Our aim is to ensure that those in greatest need get the most help from the reformed scheme. I applaud the purpose of the amendments; to safeguard the position of families with young children on the basis that they have the greatest need. We intend to do just that. Realising that the intention of the amendments would make reform almost impossible within anything close to our current budget makes it difficult to accept them. However, perhaps I may explain what we are thinking about.
	It is our intention that the value of the voucher for all the scheme's beneficiaries will be at least £2.80, as this is the average amount that retailers supplying seven pints of liquid milk under the current scheme are reimbursed. It is also our intention to give greater benefit to younger infants up to the age of one and we expect the value for them to be twice that of older children; that is, at least £5.60 per week. We anticipate that this higher level of benefit will be given throughout the child's first year and will provide an essential safety net for babies who are bottle fed. That is important for mothers who cannot breast feed. But it will also ensure that mothers who are breast feeding obtain extra help to meet their own nutritional needs at this important time. It is a time when progressively less formula is needed by infants.
	By these means, we will ensure that families with very young children are not disadvantaged by a move to value-based vouchers. Breast-feeding mothers of infants have long lost out because they have been able to exchange tokens for only seven pints of milk, which has a lower monetary value than 900 grams of infant formula. Under the scheme, for the first time, they will be given the same amount of benefit as all other mothers of infants. That is very much part of our initiative to encourage greater levels of breast feeding among low income groups.
	I hope that the noble Baroness will see that we are very aware of the needs of younger infants in the way that she would want and will therefore be able to withdraw her amendment.

Baroness Barker: My Lords, I take heart from that. I believe it is important to restate exactly what the scheme is all about. If I had a criticism of the Minister's letter, it was that at times it was too general and I do not believe that it covered the matter in quite as much detail as the noble Baroness has just done. However, given the assurances that the overall monetary value will not differ and that the flexibility will be needs-led and not financially driven, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Barker: moved Amendment No. 403C:
	Page 99, line 15, at end insert "and with a view to offering nutritional advice in particular for infants, including breast-feeding and infant formula."

Baroness Barker: My Lords, the amendments in this group relate to a similar issue. They concern the information and advice that will be provided and the people to whom that will be provided. In debate on the previous group of amendments, the noble Baroness talked about the way in which breast-feeding is not as widespread as it should be and about how important it is.
	The amendments are framed very much by the way in which the earlier versions of these provisions were written and they relate to the fairly widespread fear that not all pregnant women will be in a position to qualify for the new scheme. We consider that to be wrong; we believe that all pregnant women, whoever they are, should be included in the scheme and that they should be given appropriate nutritional advice. That is the gist of the amendments, and I hope that they will find some favour. I beg to move.

Baroness Andrews: My Lords, the noble Baroness is absolutely right. It is essential that, when we provide advice to beneficiaries about nutrition, we do so fully and appropriately. Indeed, providing that advice is a key element of our plans for reforming the scheme. However, it is important that the advice should be accessible, simple, appropriate and friendly. It should not be patronising; it should be tailored to the needs of individual beneficiaries; and it should not simply be a repetition of a set list of dos and don'ts on issues which are set down in legislation.
	It goes without say that for pregnant women and mothers of infants, any advice given must include the importance of breast-feeding and encouragement to initiate and maintain the appropriate use of formula. However, having said that, we must be very careful. When mothers are already bottle-feeding or when their children are older, giving them inappropriate advice could be counter-productive. Requiring them to receive irrelevant advice could damage the relationship or the trust that they have with health professionals and their receptiveness to other forms of advice. A similar situation would occur if, for example, we insisted, through legislation, that mothers of older children be given advice on infant-feeding in general.
	The noble Baroness also alluded to the fact that the amendments were tabled before we came forward with other changes. Therefore, I also point out that a number of the amendments relate to subsection (4), which we intend to remove from the Bill in response to continued concerns in this House. Therefore, I cannot accept the amendments, although I fully accept the spirit behind them. I hope that the noble Baroness will trust us to make the information and advice available and to make it as appropriate and as useful as possible.

Baroness Barker: My Lords, I thank the noble Baroness for that reply. Our concern was not that mothers should be given irrelevant advice but that it should be comprehensive and that there should be no fads and fashions in the advice given to pregnant women. It would not be the first time that that has happened. It was in that spirit that we tabled the amendment. We wanted to try to prevent the good elements of the current scheme being thrown out along with the rest of the reforms. However, I take on board what the noble Baroness said and acknowledge the changes which she will no doubt talk about in more detail. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 404 not moved.]

Baroness Barker: moved Amendment No. 404A:
	Page 99, line 21, at end insert "but not exclude any pregnant woman, mother or infant."

Baroness Barker: My Lords, as I said a moment ago, these amendments were framed very much by the seeming requirement within the original provision for registration and to attend certain clinics, and so on.
	Our concern is simply that all pregnant women should receive appropriate and comprehensive advice. We also felt that while the scheme is being rolled out, no one should be left out in the transition while the new system of registration and vouchers is introduced. We saw that as a potential problem. That is the spirit behind the amendments. I hope that the noble Baroness will respond positively. I beg to move.

Baroness Andrews: My Lords, as the noble Baroness explained, the intention of the amendments is to make it impossible to deny benefit to any pregnant woman, mother, infant or child irrespective of family circumstances or need, who applies to participate in the reformed scheme. They would also allow any person to benefit from the scheme even otherwise than as a beneficiary—such as a supplier of foods—regardless of whether they need the benefits that the scheme provides or whether they meet other eligibility criteria.
	Once on the scheme the intention seems to be that a person should then not be removed from it without full consideration of his or her welfare. The scheme would, therefore, in effect be almost universal and very rigid. In addition, that would contradict the historic aims of the scheme and our intentions for the future.
	We intend that the reformed scheme should build on its fundamental principle and provide help with nutrition through vouchers to those pregnant women, mothers and young children who, because they are on low incomes and receive qualifying benefit, are in greatest need of them. To increase coverage to all pregnant women, mothers and young children or others, whether or not they are on low incomes, could not be done within the current financial constraints without devaluing the benefit to the point that it becomes useless.
	We must have flexibility to use resources in a way that will do most good. I fully accept the principle that underlies the amendments, which is that we must ensure that pregnant women and families who meet eligibility criteria are brought on to the scheme quickly so that they begin to receive the benefits as quickly as possible. We intend to address that by streamlining and improving the application process, linking it with other benefits available to the group, such as the Sure Start maternity benefit, and most importantly, by publicising the scheme to those who are on qualifying benefit. Those are aspects that we fully intend to test and evaluate. We shall make modifications to the operation in the light of evaluation.
	I also fully accept that families should not be removed from the scheme for any other reason than that they no longer meet the standard eligibility criteria, for example, having children of the appropriate age, and being in receipt of benefits. However, putting the specific requirements that have been proposed on the face of the Bill will not achieve that for the reasons I have outlined. It would be a source of confusion and contradiction within the benefit regime. For those reasons I hope that the noble Baroness will withdraw her amendment.

Baroness Barker: My Lords, I thank the noble Baroness for her response. I accept some of the limitations in the drafting, which she pointed out. However, I hope that she will accept that perhaps one of the reasons that the existing scheme has done so well for over 50 years—some of us are living proof of that—is precisely that it was a universal scheme. It was there to pick up those children and mothers who might be in obvious need. That was the concern behind the amendment.
	Perhaps the noble Baroness has rather more faith than me in the new scheme, not only to determine who will be eligible at the beginning but to continue to pick up the children who would be eligible. One of the great aspects of the existing scheme was the general monitoring of healthcare that was carried on throughout.
	I note what the noble Baroness says. I shall take this away and read her comments. In the mean time I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 404B not moved.]

Baroness Cox: My Lords, before calling Amendment No. 405, I must inform the House that if that amendment is agreed to, I cannot call Amendments Nos. 405ZA to 405ZD standing in the names of the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Barker.

Earl Howe: moved Amendment No. 405:
	Page 99, leave out lines 23 to 37.

Earl Howe: My Lords, following the Minister's most welcome concession on the regulations, there can be one line only of "A Midsummer Night's Dream" with which to respond—
	"Merrily, merrily, shall I live now".
	In moving Amendment No. 405, I am able to repeat that line with even greater vigour because we have the happy circumstance of the Minister's name alongside our own. I shall not labour our objections to subsection (4) of new Section 13 of the Social Security Act 1988. Suffice it to say that I am very glad the Minister has taken on board our concerns and is prepared to join with us in deleting the subsection. I beg to move.

Baroness Andrews: My Lords, merrily indeed. I am very pleased that we were able to meet the concerns of noble Lords in this respect.
	There was widespread agreement in Committee to our main aim of bringing the Welfare Food Scheme closer to the NHS, precisely in order to help its beneficiaries to make the best use of the NHS primary care services aimed at pregnant women and families with young children. This is a clear and strategic aim. We want very much to make clear that this is part of our strategy for defeating inequalities and improving nutrition as a whole. I think we have done that. Making a direct link between that and the Welfare Food Scheme is part of the national objective.
	That method is particularly useful because it gives us a way to help young families at the earliest and most vulnerable time of their lives. That is when the lifelong understanding of good nutrition and habits will be laid down. It is timely. This week we had the report of the FSA on the consequences of poor nutrition.
	We are very positive about this. Introducing a mechanism for families to register for the reformed scheme through a health professional is a key means of bringing about contact. This is not new. I remind noble Lords that our plans are entirely consistent with other existing arrangements. In later pregnancy women on a low income already have to visit a health professional and receive advice on maternal and infant health in order to claim their Surestart Maternity grant. Women on jobseeker's allowance must also visit a health professional at a similar time to obtain proof of pregnancy and estimated date of delivery before they can make themselves unavailable for work without losing benefits. Both appointments can be rolled into one and evidence suggests that many of our current beneficiaries choose this time to notify DWP of their pregnancy and thus do not get their tokens until late. Our plans propose to link into existing arrangements but significantly to give women the encouragement to access healthcare earlier to get advice and benefit.
	However, the detailed requirements that may be specified in order for families to gain and retain access to the benefits of the reformed schemes set out in subsection (4) have given rise to much debate. I offered reassurances in Committee about the nature and purpose of the subsection. I made it clear that our intention was that the requirements would be defined in regulations in a way that is proportionate and reasonable for both health professionals and beneficiaries. I stressed that there would be nothing onerous required of either mothers or NHS staff. I stand by those assurances.
	However, I respect that many noble Lords were uncomfortable with the inclusion of some of the requirements in subsection (4). I listened to the range of opinions expressed and we have decided to delete the subsection.
	We still intend that regulations under Clause 181 will make it a requirement for a person to apply for the scheme. That is necessary simply because the introduction of tax credits will affect how information on pregnant women is collected. Currently, the Department of Health obtains information on who is eligible for the scheme from the Department for Work and Pensions. From October 2004, that will cease when the Inland Revenue takes over. We have no way of knowing who is eligible. So the simpler registration will enable eligible persons to access the welfare food benefit. I am very pleased that noble Lords are pleased that we have acceded to this and I am grateful for their support this evening.

Earl Howe: My Lords, I once again thank the Minister not only for seeing the matter from our point of view but for going as far as she has done and for her full explanation.

On Question, amendment agreed to.
	[Amendment No. 405ZE not moved.]

Baroness Barker: moved Amendment No. 405ZF:
	Page 99, line 41, leave out "person" and insert "qualified health care professional"

Baroness Barker: My Lords, I move the amendment to ask the noble Baroness if she might elucidate a little more on how access to healthcare professionals will work under the new system as she has just described it. I know that she stressed that she has taken on board those concerns, but I was not exactly sure how people who register for the scheme will have direct access to a healthcare professional. If she could just give me some assurances about how that will happen, I shall be as happy as is the noble Earl, Lord Howe. I beg to move.

Baroness Andrews: My Lords, I shall answer the question by dealing with the amendment, if I may.
	We see no reason to insist that the beneficiaries of the scheme can collect the foods to which they are entitled only from health professionals or health service bodies—which is what the amendment would provide. Some voluntary schemes exist where food is provided through co-operatives facilitated by health professionals. They work well, but they work precisely because they are voluntary and responsive to local need. To place the burden of such a role on health professionals without regard to the other pressures that they face would not be a good use of valuable skills and expertise.
	Our proposals were criticised in Committee for being intrusive and prescriptive in their requirements on beneficiaries. When we read the amendment, we thought that to introduce such a requirement would be prescriptive to the utmost degree and would remove beneficiaries' right to exercise choice. We now envisage that, for example, when a woman finds herself pregnant, she will as a matter of course in the process of confirming her pregnancy meet the health professional—the health visitor, the practice nurse, or whatever—and, as I understand it, will then simply be required to sign to say that she is pregnant and would therefore like to claim her entitlement to the welfare voucher.
	That is one matter on which we will consult, because we want—as we have done—to talk to beneficiaries about how they would feel most comfortable and confident about making that connection. If I may, I shall write to the noble Baroness about some responses that we have so far received to our consultation. That has not yet been published, but I should be happy to let her have sight of what women have said about how they think that the scheme could be improved in that respect. As I remember, there was certainly no objection to registration, but those women made some interesting comments about how they saw the scheme working. I should be happy to circulate that letter.
	Another point implicit in the amendment is that to remove the dairy industry from the scheme altogether—which, as the noble Earl said, is rather concerned about the impact of reforms on the viability of small businesses—would have a definite negative impact. That is another reason why we cannot accept the amendment. As I said in Committee, we are concerned to continue the dialogue with the dairy industry to ensure that it will continue to play a part in the scheme, as appropriate, and, indeed, to extend the number of suppliers involved so that families and women have the widest choice.
	On those grounds, I hope that the noble Baroness will withdraw her amendment.

Baroness Barker: My Lords, I thank the noble Baroness for that extremely helpful reply. We are seeking to strike a balance on this matter which has not yet been fully and satisfactorily determined. I say that for the best of reasons. One could be quite cynical about these amendments, but the motives behind them are extremely good.
	The first point of concern was that, given that this work may be undertaken in places other than the standard clinics that we all know—for example, it may take place in pharmacies—we might see a gradual smoothing away from healthcare professionals to product salesmen. Secondly, as I indicated earlier, one of the great advantages of the current scheme is the contact between pregnant women, mothers of infants and healthcare professionals. Clinics often provide an opportunity for other issues to be picked up and discussed. I cite, for example, the onset of postnatal depression, mastitis and other conditions. We are concerned to retain what is best about the involvement of healthcare professionals.
	I understand that the settings and the role that voluntary organisations may play in making services accessible may change, but I have to say that I was not wholly convinced by the answer given by the noble Baroness. However, I shall pay great attention to the letter that she has said she will write to me. We are not that far apart on this, I believe, but perhaps we have a little more work to do before we reach a union of agreement with which we are both satisfied. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 405ZG, 405ZH and 405ZJ not moved.]

Lord Warner: moved Amendment No. 405A:
	Page 100, line 37, leave out from "(1))" to first "to" in line 38 and insert "is"
	On Question, amendment agreed to.
	[Amendment No. 405AA not moved.]

Lord Warner: moved Amendment No. 405B:
	Page 101, leave out lines 11 to 13.
	On Question, amendment agreed to.
	[Amendment No. 405BA not moved.]

Lord Warner: moved Amendments Nos. 405C and 405D:
	Page 101, line 18, leave out from "body" " to "such" and insert "has"
	Page 101, leave out line 24.
	On Question, amendments agreed to.
	Clause 183 [Appointments to certain health and social care bodies]:
	[Amendments Nos. 406 to 408 not moved.]
	Clause 191 [Orders and regulations]:

Lord Geddes: My Lords, I must advise the House that if Amendment No. 409 is agreed to, I cannot call Amendment No. 409A due to pre-emption.

[Amendment No. 409 not moved.]

Lord Warner: moved Amendment No. 409A:
	Page 105, line 37, after "section" insert "(Conduct of elections) or".

Lord Warner: My Lords, this amendment is tabled in response to the recommendation made last Thursday by the Delegated Powers and Regulatory Reform Committee that the new regulation-making power to set out details of the electoral systems for elections to the boards of governors of NHS foundation trusts should be subject to the affirmative procedure.
	Amendment No. 409A would require the regulations to be subject to the affirmative procedure in the first instance, with subsequent sets of regulations being negative. This meets the committee's recommendation half way and, I think, goes far enough to give Parliament an extra safeguard in this area. Once the first set of regulations is made, it will be clear how we envisage the elections working and it would still be possible for Parliament to annul subsequent sets of the regulations if it wished to do so. I beg to move.

On Question, amendment agreed to.
	[Amendment No. 410 not moved.]

Lord Warner: moved Amendment No. 410A:
	Page 106, line 2, after "(1)(b)" insert "or section 195 or 196"

Lord Warner: My Lords, in moving Amendment No. 410A, I shall speak also to Amendments Nos. 410B to 410E.
	As your Lordships will be aware, the Delegated Powers and Regulatory Reform Committee recommended in its 24th report that affirmative procedures should apply to some of the regulation-making powers under Part 3 and to the power in Part 6 to make consequential amendments to other Acts. In the light of those recommendations, I brought forward amendments in Committee and the Committee agreed to them.
	I now have a confession to make. Those amendments did not extend the principle of the affirmative procedure to the Scottish Parliament in relation to provisions as they apply to Scotland on devolved matters. While I note that colleagues have not raised this issue in debate, I am advised that the Delegated Powers and Regulatory Reform Committee intended its recommendations to apply to Scotland. Indeed, it makes sense for them to do so in the context of devolution.
	These are technical amendments to ensure that where the affirmative procedure is to apply at Westminster it also applies at the Scottish Parliament for provisions as they apply to Scotland on devolved matters. I beg to move.

Earl Howe: My Lords, undoubtedly we can all go home like Puck with the refrain, "I am that merry wanderer of the night". I was puzzled in Committee by the Minister's reply. Our Amendment No. 412 was an attempt to draw attention to the lacuna which we felt still remained in the Bill by virtue of the recommendation from the Delegated Powers and Regulatory Reform Committee. I am delighted that the Minister has recognised that lacuna. We are very pleased to agree to the amendments.

On Question, amendment agreed to.

Lord Warner: moved Amendments Nos. 410B to 410E:
	Page 106, line 2, at end insert "(including an Act of the Scottish Parliament)"
	Page 106, line 8, at end insert—
	"( ) The Scottish Ministers may not make a statutory instrument containing—
	(a) regulations under section 146(12),
	(b) the first regulations made under section 149(2), or
	(c) an order or regulations under this Act making, by virtue of subsection (1)(b) or section 195 or 196, provision which amends or repeals any part of the text of an Act (including an Act of the Scottish Parliament),
	unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament." Page 106, line 9, leave out "regulations under Part 3" and insert "any other order or regulations under this Act"
	Page 106, line 10, after "Ministers" insert "(apart from an order under section 194)"
	On Question, amendments agreed to.

Lord Warner: moved Amendment No. 410F:
	After Clause 193, insert the following new clause—
	"ISLES OF SCILLY
	The Secretary of State may by order provide that this Act, in its application to the Isles of Scilly, is to have effect with such modifications as may be specified in the order."

Lord Warner: My Lords, we need to travel a little further from Scotland. This is a technical amendment to make a late correction to the drafting of the Bill by enabling regulations to clarify how it should apply to the Isles of Scilly.
	As your Lordships will be aware, the Isles of Scilly are part of the legal jurisdiction of England and Wales and the Bill extends there just as much as it does to the rest of England and Wales. This amendment allows provision to be made to enable the Bill to work in the Scillies given the slightly different arrangements that prevail there. This is an alternative to spelling out in the Bill the specialised provision which is needed for a very small part of the country. The case it is aimed at is the definition of "local authority" in Part 2 and related expressions. We want to be able to say that, for the Scillies, "local authority" includes the Council of the Isles of Scilly.
	There is a great deal of precedent for this kind of provision. I beg to move.

On Question, amendment agreed to.
	[Amendment No. 411 had been withdrawn from the Marshalled List.]
	Clause 196 [Supplementary and consequential provision]:
	[Amendment No. 412 not moved.]

Arms Control and Disarmament (Inspections) Bill [HL]

Bill returned from the Commons agreed to.

European Union (Accessions) Bill

Bill returned from the Commons with the amendment agreed to.
	House adjourned at sixteen minutes before eleven o'clock.